In The Stubborn System of Moral Responsibility, Bruce Waller sets out to explain why the belief in individual moral responsibility is so strong. He begins by pointing out that there is a strange disconnect between the strength of philosophical arguments in support of moral responsibility and the strength of philosophical belief in moral responsibility. While the many arguments in favor of moral responsibility are inventive, subtle, and fascinating, Waller points out that even the most ardent supporters of moral responsibility acknowledge that the arguments in its favor are far from conclusive; and some of the least confident concerning the arguments for moral responsibility—such as Van Inwagen—are most confident of the truth of moral responsibility. Thus, argues Waller, whatever the verdict on the strength of philosophical arguments for moral responsibility, it is clear that belief in moral responsibility—whether among philosophers or the folk—is based on something other than philosophical reasons.

He goes on to argue that there are several sources for the strong belief in moral responsibility, but the following four are particularly influential: First, moral responsibility is based in a powerful “strike-back” emotion that we share with other animals. Second, there is a deep-rooted “belief in a just world”—a belief that, according to Waller, most philosophers reject when they consciously consider it, but which has a deep nonconscious influence on what we regard as just treatment and which provides subtle (but mistaken) support for belief in moral responsibility. Third, there is a pervasive moral responsibility system—extending over criminal justice as well as “common sense”—that makes the truth of moral responsibility seem obvious, and makes challenges to moral responsibility seem incoherent. Finally, there is the enormous confidence we have in the power of reason, which mistakenly leads us to believe that our conscious, rational, and critically reflective selves are constantly guiding our behavior in accordance with our deep values.

In these comments, I would like to discuss the many points of agreement I have with Waller, providing along the way additional fuel for his skeptical fire (i.e., his moral responsibility skepticism and his skeptical analysis of the source of our strong belief in moral responsibility). I will also discuss, however, my one main point of disagreement—i.e., his desire to preserve the conception of free will. Waller believes free will can “flourish” in the absence of moral responsibility (see ch. 8), while I maintain that the variety of free will that is of central philosophical and practical importance is the sort required for moral responsibility in a particular but pervasive sense. This sense of moral responsibility is set apart by the notion of basic desert and is purely backward-looking and non-consequentialist.1 Understood this way, the sort of free will at issue in the historical debate is a kind of power or ability an agent must possess in order to justify certain kinds of desert-based judgments, attitudes, or treatments in response to decisions or actions that the agent performed or failed to perform.

To begin, let me first acknowledge my agreement with Waller concerning the philosophical arguments for moral responsibility, which tend to be weaker than the corresponding belief philosophers have in moral responsibility. Consider, for example, Peter van Inwagen’s dogged, resolute, and (one may say) stubborn belief in moral responsibility. After having championed the consequence argument in favor of incompatibilism, van Inwagen proceeds to argue that we must reject determinism even though it means free will “remains a mystery,”2 since to “deny the free-will thesis is to deny the existence of moral responsibility, which would be absurd.”3 He then proceeds to argue that, if science were one day able to present us with compelling reasons for believing in determinism, “then, and only then, I think, should we become compatibilists”4—despite, of course, all his efforts defending the consequence argument.

Additional evidence of the kind of stubbornness Waller has in mind can be found among agent-causal libertarians—such as C. A. Campbell (1957), Richard Taylor (1963), and Roderick Chisholm (1982)—who are willing to embrace mysterious and “god-like” powers and abilities to preserve moral responsibility. Chisholm, for example, famously argued: “If we are responsible, and if what I have been trying to say is true, then we have a prerogative which some would attribute only to God: each of us, when we really act, is a prime mover unmoved.”5 As Waller so eloquently and correctly points out: “When contemporary philosophers are willing to posit miracles in order to save moral responsibility, the philosophical belief in moral responsibility obviously runs deep and strong” (3).

Compatibilists, of course, reject miracles and propose accounts of moral responsibility consistent with our naturalistic (and even deterministic) worldview, yet they seldom provide justification for the moral responsibility system itself. In lieu of justifying the moral responsibility system, compatibilists typically take the system as given and instead focus on what attitudes, judgments, and treatments are justified from within the system. P. F. Strawson (1962) is a good example of this. His defense of the reactive attitudes takes our normal moral responsibility practices as given and proceeds from there to articulate special circumstances when it is acceptable not to hold someone morally responsible or to excuse them—e.g., when they are profoundly impaired by delusion or lack any moral capacity, either temporarily or permanently. In such circumstances, we adopt what Strawson calls the objective attitude. But according to Strawson and his followers, the denial of all moral responsibility is unacceptable, self-defeating, and/or impossible, since to permanently excuse everyone would entail that “nobody knows what he’s doing or that everybody’s behavior is unintelligible in terms of conscious purposes or that everybody lives in a world of delusion or that nobody has a moral sense.”6 The problem with this defense of moral responsibility, however, is that it takes for granted the very thing in need of justification. As Waller so eloquently explains:

If we start from the assumption of the moral responsibility system (assumptions that are so common and deep that they are difficult to escape), then the denial of moral responsibility is absurd and self-defeating. But the universal denial of moral responsibility does not start from the assumption that under normal circumstances we are morally responsible, and it does not proceed from that starting point to enlarge and extend the range of excuses to cover everyone (so that everyone is profoundly flawed). That is indeed a path to absurdity. Rather, those who reject moral responsibility reject the basic system which starts from the assumption that all minimally competent persons (all who reach the plateau level) are morally responsible. For those who deny moral responsibility, it is never fair to treat anyone as morally responsible, no matter how reasonable, competent, self-efficacious, strong-willed, and clear-sighted that person may be. (103)

This, of course, is because the basic challenge to the moral responsibility system presented by skeptics7 does not accept the rules of that system.

Since I agree with Waller that belief in moral responsibility is stronger than the philosophical arguments presented in their favor—either because those arguments are scientifically implausible (as in the case of agent causation), or they beg the question (as in the case of Strawson and his followers), or they end up “changing the subjection” (see Waller’s discussion in ch. 2)—in searching for the roots of the belief in moral responsibility, we must dig deeper than philosophical arguments. I also agree with Waller that the source of the strong belief in moral responsibility stems in large part from (a) our “strike-back” emotion, (b) the deep rooted belief in a just world, (c) the pervasiveness of the moral responsibility system that makes the truth of moral responsibility seem obvious, and (d) our overconfidence in the powers of reason.

Since I have already discussed the connection between just world belief and beliefs about free will, moral responsibility, and just deserts at great length elsewhere,8 and since my (brief) comments on Strawson above have already highlighted the power of the moral responsibility system to obfuscate the fundamental question regarding the justification of the system itself, I will limit my focus here to Waller’s discussion of the “strike-back” emotion.

It is important to acknowledge that human beings share a powerful strike-back emotion with other animals. When we are wronged, and when we observe another being wronged, we feel a strong and immediate urge to strike back. According to Waller, this strike-back emotion is one of the main sources of our strong belief in moral responsibility:

The deepest roots of our commitment to moral responsibility are in powerful emotions, rather than reason. There are many sources for the stubborn belief in moral responsibility, and some are quite subtle. But the most basic source has the subtlety of a barroom brawl, a back-country feud, or rats locked in a frenzied death struggle: the strike-back desire when we are harmed. (39)

He goes on to add:

The vengeance motive is powerful, revenge is sweet, and retribution feels righteous. The desire to strike back, to take arms against a sea of troubles, to take revenge: this is not only a powerful desire, but one that feels morally justified. We like to punish, and we are willing to sacrifice in order to do so (Fehr and Gachter 2002; Haidt 2012, 178–79). (39)

This emotional source of our belief in moral responsibility is strong, pervasive, and (I would argue) often counterproductive with regard to achieving certain desired ends such as future safety, reconciliation, and moral formation.9

Neil Levy, for example, does an excellent job articulating how our moral emotions tend to fuel retributive impulses, which in turn often leads to excessively punitive forms of punishment:

Human beings are a punitive species. Perhaps because we are social animals, and require the cooperation of others to achieve our goals, we are strongly disposed to punish those who take advantage of us. Those who “free-ride,” taking benefits to which they are not entitled, are subject to exclusion, the imposition of fines or harsher penalties. Wrongdoing arouses strong emotions in us, whether it is done to us, or to others. Our indignation and resentment have fuelled a dizzying variety of punitive practices—ostracism, branding, beheading, quartering, fining, and very many more. The details vary from place to place and time to culture but punishment has been a human universal, because it has been in our evolutionary interests. However, those evolutionary impulses are crude guides to how we should deal with offenders in contemporary society. (2016)

Crude indeed! As Waller notes: “Looking carefully at the strike-back emotion we share with rats and chimps prompts doubts of its legitimacy as a foundation for our moral thoughts” (43). When we do look carefully, what we find is that the powerful strike-back emotion overwhelms careful reflection—the kind of careful reflection that is required if we wish to adopt more effective and humane policies regarding punishment.

This is not to say, of course, that our moral emotions are always bad or that we should wish to eliminate them completely. Waller correctly points out that in certain circumstances anger provides an important ethical need (45–51)—e.g., exhibiting the right emotion when someone I love is seriously wronged. In fact, there are many emotions we do not wish to eliminate, but that we do not always regard as reliable guides to behavior. These considerations lead Waller to conclude:

Thus as a moral responsibility abolitionist I feel anger at cruel acts, and do not think it desirable to eliminate such emotions (to put it badly, I am glad I feel such angry emotions); but that is consistent with believing that it would be wrong to use those emotions as guides to behavior or as justification for the system of moral responsibility. (49)

On these points, I agree. But I would like to recommend two helpful supplements to Waller’s account.

First, like Waller, I acknowledge that the emotional reactions associated with the desire to strike back are natural, but at the same time challenge the claim that they are justified. Consider, once again, the reactive attitudes of resentment, indignation, blame, and moral anger. Since these reactive attitudes can cause harm, they would be appropriate only if it is fair that the agent be subject to them in the sense that she deserves them. We can say, then, that an agent is accountable for her action when she deserves, in the basic desert sense, to be praised or blamed for what she did—i.e., she deserves certain kinds of desert-based judgments, attitudes, or treatments in response to decisions or actions she performed or failed to perform, and these judgments, attitudes, or treatments are justified on purely backward-looking grounds and do not appeal to consequentialist or forward-looking considerations, such as future protection, future reconciliation, or future moral formation.

The version of free will skepticism I defend, which includes a skepticism about moral responsibility (more on this in a moment), maintains that agents are never morally responsible in the basic desert sense, and hence expression of resentment, indignation, and moral anger involves doxastic irrationality (at least to the extent it is accompanied by the belief that its target deserves to be its recipient). Of course one could ask, as surely a Strawsonian would, “But can we ever really relinquish these reactive attitudes? And would it be desirable if we could?” In response, I would first say that the moral anger associated with the reactive attitudes of resentment and indignation is often corrosive to our interpersonal relationships and to our social policies.10 Like Pereboom,11 I contend that the expression of these reactive attitudes are often suboptimal as modes of communication in relationships relative to alternative attitudes available to us—e.g., feeling hurt, or shocked, or disappointed.

On the question of whether it is possible to relinquish these reactive attitudes, my answer begins by first distinguishing between what Shaun Nichols calls narrow-profile emotional responses and wide-profile responses.12 It is this distinction that I offer up as a supplement to Waller’s account. Narrow-profile emotional responses are local or immediate emotional reactions to a situation. Wide-profile responses are not immediate and can involve rational reflection. I believe it is perfectly consistent for a free will skeptic to maintain that expressions of resentment and indignation are irrational and still acknowledge that there may be certain types and degrees of resentment and indignation that are beyond our power to affect. If, for example, some serious moral wrong were done to my wife and daughter, I doubt I would be able to keep myself from some degree of narrow-profile, immediate resentment (nor, as Waller points out, would I be judged kindly if I did). Nevertheless, in wide-profile cases, we do have the ability to diminish or even eliminate resentment and indignation, or at least disavow it in the sense of rejecting any force it might be thought to have in justifying harmful reactions and policies.13 And since the wide-profile emotional reactions are most important when it comes to public policy—waging war, criminal sentencing, justifying punishment, etc.—I do believe philosophical arguments against moral responsibility can change our practices and reactions.

My second supplement to Waller’s account draws on recent empirical work in social psychology, which indicates that how we assign responsibility is correlated with prior judgments of what counts as being morally bad, which are in turn dependent upon other, larger, social and cultural factors.14 Take, for example, Mark Alicke’s culpable control model of blame. It proposes that our desire to blame someone intrudes on our assessments of that person’s ability to control his or her thoughts or behavior.15 As Valerie Hardcastle describes:

Deciding that someone is responsible for an act, which is taken to be the conclusion of a judgment, is actually part of our psychological process of assessing blame. If we start with a spontaneous negative reaction, then that can lead to our hypothesizing that the source of the action is blameworthy as well as to an active desire to blame that source. This desire, in turn, skews our interpretations of the available evidence such that it supports our blame hypothesis. We highlight evidence that indicates negligence, recklessness, impure motives, or a faulty character, and we ignore evidence that suggests otherwise. In other words, instead of dispassionately judging whether someone is responsible, we validate our spontaneous reaction of blameworthiness.16

In fact, as Hardcastle cites, data suggests that we often exaggerate a person’s actual or potential control over an event to justify our blame judgment and we will even change the threshold of how much control is required for a blame judgment.17

A recent set of studies by Cory Clark and his colleagues (2014), for example, found that a key factor promoting belief in free will is a fundamental desire to blame and hold others morally responsible for their wrongful behaviors. Across five studies they found evidence that greater belief in free will is due to heightened punitive motivations. In one study, for instance, an ostensibly real classroom cheating incident led to increased free will beliefs, presumably due to heightened punitive motivations. In a second study, they found that the prevalence of immoral behavior, as measured by crime and homicide rates, predicted free will belief on a country level. These findings suggest that our desire to blame and hold others morally responsible comes first and drives our belief in free will, rather than the other way around.

Other researchers have found that our judgment on whether an action was done on purpose or not is influenced by our moral evaluation of the outcome of certain actions—i.e., whether we morally like or dislike it.18 Additional findings have found an asymmetric understanding of the moral nature of our own actions and those of others, such that we judge our own actions and motivations as more moral than those of the average person.19 As Maureen Sie describes:

In cases of other people acting in morally wrong ways we tend to explain those wrongdoings in terms of the agent’s lack of virtue or morally bad character traits. We focus on those elements that allow us to blame agents for their moral wrongdoings. On the other hand, in cases where we ourselves act in morally reprehensible ways we tend to focus on exceptional elements of our situation, emphasizing the lack of room to do otherwise.20

These empirical findings help support Waller’s argument concerning the role the strike-back emotion plays in our moral responsibility beliefs and practices. It appears that our moral responsibility practices are often driven, possibly primarily driven, by our desire to blame, punish, and strike back at moral transgressors, rather than, and often in lieu of, our more rational and objective judgments about free will, control, and moral responsibility.

Keeping in mind, then, that I share with Waller both his long-standing skepticism about moral responsibility and his analysis of why the belief in moral responsibility is so stubborn, I will now turn to our one point of substantive disagreement: whether or not the concept of free will should be preserved. While I completely agree with Waller that backward-looking moral responsibility, praise and blame, and the reactive attitudes of resentment, indignation, guilt, and righteous anger cannot be justified in a naturalist world devoid of miracles, I see no justification for, or benefit in, preserving his restorative notion of free will. In both The Stubborn System of Moral Responsibility (ch. 6) and in his new book, Restorative Free Will, Waller argues that free will can flourish in the absence of moral responsibility. Since I have recently criticized this aspect of Waller’s account elsewhere,21 I will keep my comments here brief.

On Waller’s account, free will amounts to the ability to discriminate among and evaluate alternatives and the ability to adjust the level of behavioral variability to environmental conditions. I contend that this conception of free will makes the dispute between compatibilists and incompatibilists a moot point since no one in the debate denies that we have the kinds of abilities discussed by Waller. The question most philosophers are interested in—the question that is of central philosophical and practical importance in the free will debate—is whether these abilities are enough to justify certain kinds of desert-based judgments, attitudes, or treatments in response to decisions or actions that an agent performed or failed to perform. On this point, Waller and I both agree that the answer is no. It’s hard to see how Waller’s conception of restorative free will—divorced as it is from moral responsibility—helps resolve that debate, or frankly any other significant debate related to the historical problem of free will. Even if we grant Waller his restorative free will, it is difficult to think of anything of importance that follows from it regarding our everyday practices, judgments, and attitudes. By liberating free will from moral responsibility, Waller has seemingly liberated it from all of its philosophical and practical importance.

I have elsewhere argued that there are several distinct advantages to defining free will in terms of the control in action required for basic desert moral responsibility:22 (a) it provides a neutral definition that virtually all parties can agree to—i.e., it doesn’t exclude from the outset various conceptions of free will that are available for compatibilists, libertarians, and free will skeptics to adopt; (b) it captures the practical importance of the debate; (c) it fits with the commonsense (i.e., folk) understanding of these concepts; and, perhaps most importantly, (d) rejecting this understanding of free will makes it difficult to understand the nature of the substantive disputes that are driving the free will debate. Waller’s conception of free will, it seems to me, fails to have any of these virtues.23 I therefore encourage my good friend to follow me down the “sinful path of free will eliminativism.”24

Let me end with some final thoughts. No one has influenced my thinking on moral responsibility more than Bruce Waller. For that I owe him a great debt. Like Waller, I believe we should “destroy moral responsibility, drive a stake in its heart, and bury it at the crossroads.”25 But given how strong and stubborn the belief in moral responsibility is, this will not be easy. Furthermore, Waller’s desire to preserve free will, contrary to his good intentions, may actually be standing in the way of achieving that end. Jasmine Carey and Delroy Paulhus (2013) have recently found that where belief in free will is strongest we tend to find increased retributive moral judgments. More specifically, they found that free will believers were more likely to call for harsher criminal punishment in a number of hypothetical scenarios. Shariff et al. (2014) have reported similar findings. In one study Shariff and his colleagues found that people with weaker free will beliefs endorsed less retributive attitudes regarding punishment of criminals, yet their consequentialist attitudes were unaffected. In a different study they found that experimentally diminishing free will belief through anti-free-will arguments diminished retributive punishment, suggesting a causal relationship. This research provides prima facie support for thinking that the folk concept of free will is linked with moral responsibility and, more specifically, retributivist judgments. If Waller wants to reduce the latter, as I know he does, his free will preservationism may be counterproductive.

References

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———. Review of Restorative Free Will: Back to the Biological Base. Notre Dame Philosophical Review, by Bruce Waller, January 16, 2016.

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The Stubborn System of Moral Responsibility is easily one of the best philosophy books I have read and it may even be the best. Waller’s writings are erudite, sharp and immensely important in a time where individuality and harshness are omnipresent. The book is a must read for anyone who is convinced that philosophy is not just about asking critical questions, but also about getting at the truth of things that matter. Inflicting (serious) harm on others without a proper justification matters whether it concerns perpetrators harming victims or the criminal justice system harming offenders and forensic patients. Questioning retributive punishment in the face of challenging criticisms is an integral part of the free will skepticism position and Waller’s book adds much to this challenging philosophical debate.

In his excellent book Waller carefully explains that one of the reasons why compatibilist thinkers like Daniel Dennett argue that we should hold on to our current practices of attributing praise and blame is the worry that “the steady march of scientific understanding will erode away all the space required for free will and moral responsibility” (176). We will have nothing left. As we understand more and more about individual’s formative histories, we will have more and more excuses available to argue away all attributions of competency and human agency. We will be left with a system that denies moral responsibility based on the recognition of “universal flaws and a universal denial of individual competency.” (179) We will undermine personal agency, personal strength and all human achievements thereby creating a world of non-competent automatons. Without moral responsibility, philosophers fear our emotional lives will be impoverished, morality will be lost, and harsh and uncontrollable forms of “therapy” will replace punishment.

If this would follow from a free will skeptic approach to human behavior and decision-making it is troublesome indeed. In his book, Waller decisively argues that there is no reason to hold these views. Waller strongly rejects what he previously coined the “excuse-extensionist model”: the idea that the denial of moral responsibility implies or necessitates a universal extension of competence-destroying excuses.1 He correctly identifies that the denial of moral responsibility entails that no individual is morally responsible in a desert-based manner no matter how much or little competency that individual possesses. No matter how much or little capacity for human agency that individual possesses. The book confronts us with the implications of taking moral responsibility skepticism seriously: We can use our scientific understanding of human behavior to identify whether or not an individual has the capacity for take-charge responsibility, but not (desert-based) moral responsibility. Waller describes take-charge responsibility as “the sort of responsibility we can have for a project, a role, or enterprise; or to extend it further, the sort of responsibility we can claim for our own decision and our own lives” (182). It is about managing one’s own life, making one’s own decisions and following one’s own path. Hence, it seems, without freedom one cannot exercise take-charge responsibility.

Although Waller is a fervent denier of moral responsibility, he does present an account of freedom / free will. Waller rejects the idea of free will as a uniquely human capacity or power that is distinct from the capacities or powers that nonhuman animals possess and explains it in a naturalistic sense. I agree that it makes no sense to draw a line between humans and nonhuman animals when faced with Waller’s understanding of free will. However, his understanding of free will seems different from the way in which free will skeptics, hard incompatibilists and libertarians typically understand free will (i.e., contra-causal). In my view, there is a difference between free will, as for example discussed by Sam Harris (2012) and Caruso (2013, 2016) and freedom, as for example defended by compatibilists such as Daniel Dennett (1978, 2003) and Fischer and Ravizza (1998). Free will skeptics argue that the relevant question is whether an offender could have acted differently in precisely those circumstances with precisely the powers and limitations he or she actually had. Could he or she actually have acted differently? Free will in this sense entails being the sole author of one’s behavior and implies that one could genuinely have acted otherwise (as also defined by Waller in his earlier writings)2 Free will skeptics hold that this is the kind of free will that is needed to attribute “moral guilt” and to justify retributive punishment and it is entirely different from compatibilist freedom.

Compatibilist freedom distinguishes between individuals with and without normal capacities for moral decision-making and human agency within a deterministic worldview. Such a difference is normatively relevant and may be scientifically identifiable. However, if agents with and without these capacities are considered inhabitants of a world in which behavior is fully determined by antecedent factors, can it ever be justified to purposively inflict harm on offenders on the ground that they acted freely? There is a huge difference between feeling (appropriately) in charge of one’s actions on the one hand, and having the (contra-causal) capacity to make a different choice at a given moment in time if faced with exactly the same formative history on the other hand. Whereas compatibilists are willing to use such freedom as the basis of moral responsibility attributions, free will skeptics argue that this capacity cannot justify desert-based moral responsibility or a concept of legal responsibility and punishment drawing upon desert.

It therefore makes sense to draw a distinction between free will and freedom, or between free will and free behavior. Individuals can be free to a greater or lesser extent in the sense of having greater or lesser capacities for (moral) agency, reason-responsiveness, rational deliberation and behavior, self-control, self-governance, etc. (all interrelated concepts). Nonhuman animals can be free to a greater or lesser extent in line with the species-typical display and possession of their behavioral capacities. Waller seems to understand free will as “not being hampered from performing species-typical behavior,” which is essentially how many compatibilist understand free will, or rather, freedom. It tracks Wakefield’s understanding of “normality” with respect to psychiatric disorders in humans.3 That kind of free will (i.e., freedom) does not undermine the moral responsibility system because it can operate from within the moral responsibility system. It is the contra-causal notion or rather, its absence, that undermines the moral responsibility system that Waller fiercely rejects. If contra-causal free will does not exist, and it does not, then it is fundamentally unfair to hold individuals morally responsible and retributively punish wrongdoers even if society cannot or should not completely eliminate punishment. Hence, it seems that two very distinct notions of free will are doing the conceptual work in Waller’s book: the free will skeptic notion of free will that leads to the rejection of (desert-based) moral responsibility and the compatibilist notion of freedom that allows for the preservation of take-charge responsibility. If these two notions are kept separate, it might make Waller’s line of reasoning even more convincing.

Freedom exists in gradations and refers to psychological capacities that can be described by our existing scientific knowledge. Compatibilist thinkers typically understand freedom as a backward-looking notion. Individuals with a normal capacity for moral decision-making and behavior are considered free and therefore morally responsible for their behavior. Free will skeptics may also attribute some notion of freedom to individuals, but their understanding of freedom will be forward-looking. Forward-looking freedom, human agency and take-charge responsibility are interrelated concepts within a free will skeptic account. Having or lacking human agency and a capacity for take-charge responsibility implies having or lacking the freedom to change one’s future behavior if given the means to do so. Whether individuals possess or lack normal capacities for human agency and take-charge responsibility is therefore important with respect to rehabilitation and leading a crime-free life. These capacities are based on cognitive, motivational and emotional processes that can be enhanced to a greater or lesser extent if found to be lacking or impaired in a given individual. The latter is the goal of moral enhancement, which can be achieved by traditional means such as education and moral upbringing or potentially by biomedical means. As individuals, we do not have the free will to act differently at a given moment in time, but we do possess the freedom or take-charge responsibility to change our future behavior provided adequate means to accomplish such changes are provided. Such means can focus on changing the environment by addressing structural impediments to leading a crime-free life (e.g., addressing poverty, addiction, unemployment, incarceration) or on changing the individual in question (i.e., restoring or enhancing an individuals’ decision-making capacities and behavior through behavioral and/or neurobiological interventions).4

If better formative histories allow for a morally better world, we clearly have strong reasons to focus on changing our societies and perhaps our genetic and biological make-up for the better. However, one could also argue that forward-looking notions of freedom are as unintelligible as backward-looking notions of freedom since all behavior is determined. Hence, whether or not our society moves towards a morally better world or a less violent world, as for example Pinker (2011) has argued, is not up to us. Can we truly make sense of a forward-looking notion of freedom if contra-causal free will and desert-based moral responsibility are lost? Can you intelligibly preserve forward-looking freedom without backward-looking freedom? Perhaps only if we acknowledge that it is just as much an illusion as backward-looking notions.

Waller wants us to discard our existing “moral responsibility system” and urges us to look for a better and more productive system. I agree with Waller. One thing that might be important to highlight is the need to be very cautious when considering the idea that prevention and/or rehabilitation measures are “better” than (retributive) punishment, especially with respect to forensic mental health treatment. The risk of undesirable ethical, social and legal consequences such as the deliberate misuse of treatment programs for social control purposes needs to be taken seriously.5 Individuals receiving a psychiatric label run the risk of being stigmatized, may experience fear of rejection and mistreatment, and may be subject to discrimination and prejudice. Experiences like these make individuals prone to the development of low self-esteem and the internalization of self-blame which may prevent successful treatment outcomes in the long run. Moreover, the risk of false positives inherent to medical diagnoses in general and psychiatric diagnoses in particular urges us to be very careful when focusing on (early) detection, prevention and rehabilitation.6 We should be mindful that certain behaviors are easily misclassified as behavioral indications of an underlying disorder while in reality being expressions of normal variation in personality traits and behaviors. The risk of false positives is especially worrisome when faced with children and adolescents living in low socioeconomic, deprived neighborhoods and attending schools with high-delinquency rates. Behavior that reflects normal survival and coping strategies in such environments may be misunderstood as exemplifying underlying disorders.

For Waller, denying moral responsibility is about recognizing that our desire for retribution is a guide to unjust behavior. In his view, the entire system of moral responsibility is flawed and in violation of basic principles of fairness. If we recognize this, then we can pave the road towards a better society. While blame and retributive punishment are lost, moral evaluation and the identification of wrong behavior as morally bad behavior remains available to us. From a broader societal and criminal justice perspective, the extent to which humans display take-charge responsibility and how this can give rise to morally good rather than morally bad behavior, is crucial. Forward-looking freedom implies that human behavior is malleable and that continuous efforts to achieve more morally good behavior are worthwhile.

References

Caruso, G. D., ed. Exploring the Illusion of Free Will and Moral Responsibility. Plymouth, UK: Lexington, 2013.

———. “Free Will Skepticism and Criminal Behavior: A Public Health-Quarantine Model.” Southwest Philosophy Review 32:1 (2016).

Dennett, D. Elbow Room. Cambridge: MIT Press, 1978.

———. Freedom Evolves. New York: Viking, 2003.

Fischer, J. M., and M. Ravizza. Responsibility and Control. A Theory of Moral Responsibility. Cambridge: Cambridge University Press, 1998.

Focquaert, F. “Mandatory Neurotechnological Treatment: Ethical Issues.” Theoretical Medicine and Bioethics 35:1 (2014) 59–72.

Glenn, A. L., et al. “Prediction of Antisocial Behavior: Review and Ethical Issues.” In Handbook of Neuroethics, edited by Jens Clausen and Neil Levy, 1689–701. Dordrecht: Springer, 2015.

Harris, S. Free Will. New York: Free Press, 2012.

Hörskotter, D., et al. “Early Prevention of Antisocial Behavior (ASB): A Comparative Ethical Analysis of Psychosocial and Biomedical Approaches.” BioSocieties 9:1 (2014) 60–83.

Pinker, S. The Better Angels of Our Nature. A History of Violence and Humanity. London: Penguin, 2011.

Wakefield, J. C. “Diagnostic Issues and Controversies in DSM-5: Return of the False Positives Problem.” Annual Review of Clinical Psychology 12 (2016) 16.1–16.28.

Waller, B. N. “Denying Responsibility Without Making Excuses.” American Philosophical Quarterly 43:1 (2006) 81–90.

———. The Stubborn System of Moral Responsibility. Cambridge: MIT Press, 2015.

In his insightful and powerfully argued book The Stubborn System of Moral Responsibility, Bruce Waller takes on a novel task. Rather than directly arguing for the abolition of moral responsibility (as many have done, and as Waller himself has done admirably elsewhere1), Waller’s primary aim in this book is to diagnose the stubborn persistence of the belief in moral responsibility. Why does the belief in moral responsibility remain so deeply entrenched, even among philosophers who recognize and have thought carefully about threats to it—threats like the possibility of causal determinism, the pervasiveness of moral luck, and the limits of human reason? In this essay, I will focus on challenging one aspect of Waller’s answer—his appeal to the powerful cultural forces that keep the moral responsibility system in place. Waller makes a compelling and empirically informed case that individualistic neoliberal societies (like ours) remain committed to moral responsibility in part because of the drive to blame and punish individual wrongdoers. Waller contrasts our society with social democratic societies that he argues have moved (at least to some degree) away from the moral responsibility system, with positive results. However, I will argue that there is a viable alternative explanation—that rather than having moved away from moral responsibility, social democratic societies instead possess a robust moral responsibility system that is, in certain key respects, simply different from ours. I will support the plausibility of this claim in part by arguing for the possibility of a moral responsibility system that eschews punishment entirely.

I. Defining Moral Responsibility

One should, of course, always define one’s terms up front. What exactly is it that we’re talking about in the debate over moral responsibility? Waller is very clear about what he has in mind. In his view, the question of moral responsibility is closely connected to the justice of punishment (and rewards). As he puts it, “The basic question that motivates concerns about moral responsibility has not changed: Is it just, is it fair, to punish people for their wrongdoing, and give special rewards for virtuous acts?” (9). Waller cites a number of other philosophers (running the spectrum from skeptics to strong defenders of moral responsibility) who define the question of moral responsibility similarly. As he cites Michael McKenna, “What most everyone is hunting for . . . is the sort of moral responsibility that is desert entailing, the kind that makes blaming and punishing as well as praising and rewarding justified.”2 And as he cites Galen Strawson, “Responsibility and desert of such a kind that it can exist if and only if punishment and reward can be fair or just without having any pragmatic justification.”3 And so on.

However, I think we should avoid defining moral responsibility in terms of punishment. An attractive definition that is more neutral with regards to the question of punishment, while retaining basic desert, is offered by Neil Levy (also a moral responsibility skeptic): “An agent is morally responsible for an action or an omission if the fact that they have performed that action, in the circumstances and manner in which they acted, is relevant to how they may permissibly be treated when it comes to the distribution of benefits and burdens.”4 Moral responsibility should involve some notion of basic desert, yes (lest we run afoul of the error of “redefining responsibility” that Waller discusses)—but basic desert needn’t be understood in terms of punishment. As I will argue shortly, one can in fact defend moral responsibility while abandoning the commitment to punishment entirely.

II. Neoliberalism, Social Democracy, and Responsibility

But first, I will turn to a brief summary of the aspect of Waller’s book that I want to press on—Waller’s claim that highly individualistic neoliberal societies are characterized by their strong commitment to the moral responsibility system, and that this commitment to moral responsibility is to blame for many of the shortcomings of neoliberal societies (shortcomings that are becoming widely recognized even within neoliberal societies). Waller argues that this commitment gives rise to a range of policies (economic policies, criminal justice policies, etc.)—and our commitment to these policies, in turn, help keep the moral responsibility system in place. Here is how Waller characterizes the individualistic neoliberal society (drawing on the work of researchers like criminologists Michael Cavadino and James Dignan5):

Neoliberal culture is characterized by a minimal welfare system (and those supported by that system are often stigmatized), few restrictions on the market, extreme differences in wealth, severe punitive measures which isolate wrongdoers from the rest of society, the existence of groups and communities that are effectively marginalized from the larger society (typically by poverty), and a strong belief in the ideal of individuals as self-sufficient and self-made. (209)

The United States and the UK are provided as paradigmatic examples of this kind of society. Neoliberal societies are contrasted most strongly with “social democratic corporatist” cultures like Sweden, Finland, Norway, and Denmark. As Waller describes it:

These countries are characterized by generous welfare support, which is regarded as a basic right of all members of the society. Income differentials are small, and social rights and social inclusion are strong values. The imprisonment rate in social democratic corporatist cultures is very low (England imprisons at a rate double that of Sweden and Finland, while the United States—the world leader—imprisons at a rate ten times higher); and punitive measures in social democratic corporatist cultures emphasize inclusion, rehabilitation, and restoration of wrongdoers into society, with strong emphasis on the rights of prisoners as continuing members of the community. (210)

In Waller’s view, what (at least primarily) explains these differences in approaches to issues like criminal justice, social welfare, and economics is the degree to which different societies are committed to the moral responsibility system. Neoliberal societies focus on individual moral responsibility (for crimes, for financial success or failure, etc.), whereas social democratic societies “acknowledge the powerful and ubiquitous influence of social factors on every person’s development” (211). In acknowledging this, social democratic societies show (in Waller’s view) a lesser degree of commitment to the belief in moral responsibility; they are more willing to see failed individuals (criminals, the poor, the uneducated, etc.) as victims of social factors (and perhaps other factors as well), not truly morally responsible for their lot in life. If one acknowledges that things like extreme economic inequality, mass incarceration in effective prison systems, and poorer educational outcomes are serious problems for neoliberal societies (as we should), and that less individualistic social democratic societies perform much better than we do on all of these measures, then it appears that Waller has provided a strong case for the pragmatic benefits of abandoning the moral responsibility system—if only we could bring ourselves to do so.

However, in my view is not clear that the real difference between individualistic neoliberal societies and “social democratic corporatist” societies is the degree of commitment to the belief in moral responsibility. There is an alternate explanation that I think is plausible and worth considering—that the real difference between a neoliberal society like ours and social democratic societies is in fact simply a difference in attitudes regarding who should be held responsible. This shift in views about who is to be held responsible could, in turn, explain differences in attitudes towards policy.

Waller presents a strong case that neoliberal societies are very narrowly focused on holding only individuals accountable—for their educational successes and failures, for their financial successes and failures, for their criminal behaviors, and so on. The hypothesis I want us to consider is this: in a social democratic culture, the view of who is to be held responsible is simply much broader. The individual is still viewed as deserving some blame (and Waller acknowledges that individual blame still exists within social democratic cultures; he says, rightly, that no society has completely abandoned moral responsibility)—but the blame does not belong to the individual alone. The social democratic society has a much stronger commitment to collective moral responsibility—we all deserve blame for the failings of individual citizens, and it is our collective duty to try to rectify the situation.

In fact, there is evidence for the view I am suggesting to be found in some of the passages that Waller quotes from researchers who study the differences between our different kinds of cultures. For example, Waller quotes the criminologists Cavadino and Dignan: “Without going so far as to say that ‘society is to blame’ for all crime, there could nevertheless be a greater willingness to assume a degree of collective responsibility for the fact that an offence has been committed.”6 The possibility I am suggesting we consider is that perhaps the “greater appreciation of the influence of factors beyond individual control” that Waller argues exists in social democratic cultures does not signify a move away from moral responsibility, but rather simply a broader view of who should be regarded as morally responsible.

III. Pure Restitution

It seems to me that much of the plausibility of Waller’s case against moral responsibility stems from the (allegedly) close connection between moral responsibility and punishment. In this book and in earlier work, Waller has pointed to some successful real-world examples of programs that deemphasize individual punishment to improve results. One excellent example is the adoption of a program to improve commercial airline safety by changing the ways in which air traffic controllers were held accountable. Instead of singling out individual controllers for blame and punishment for mistakes (which gave controllers an incentive to hide errors to avoid punishment), the new model encouraged workers to report errors and potential sources of error in the system. This approach drastically improved commercial airline safety, reducing fatalities 83 percent over the course of a decade.7

Waller puts examples like this to good use to make a compelling case that shifting away from individual blame, and especially from individual punishment, can have good effects when done properly. The claim I am challenging is this: that insofar as these systems do move away from individual blame—and in particular from individual punishment—that they thereby have also moved away from moral responsibility. Suppose we consider the limiting case; suppose we could find a way to abolish punishment entirely (something even Waller is skeptical about), and do so in a way that would produce good overall outcomes (as good as or better than any system that contains punishment). Would doing so necessarily mean abandoning moral responsibility as well? In my view, it is a mistake to think so. One can consistently, at least in principle, defend moral responsibility in a basic desert sense while wholly abandoning any commitment to punishment. For the sake of space, I can’t attempt a full defense of this claim here. But I want to point out that in the philosophical literature on moral justifications of criminal punishment, there are some who advocate for the abandonment of punishment (in particular legal punishment, but in principle the same idea could be extended to other areas)—and do so without abandoning the commitment to moral responsibility.

One way to do this is to advocate for a system that has been called “pure restitution” as an alternative to punishment.8 Let me say just a little bit about what that idea involves. The aim of pure restitution is not retributive—the goal is not to make transgressors suffer as punishment for their crimes. Rather, the function of a pure restitution system is to compel transgressors to make restitution to those who have been harmed by their transgressions (this can include both direct and indirect victims of a crime), with the goal of restoring the victims to their rightful prior level of well-being (or at least getting them as close to that state as is possible). The pure restitution model fits nicely with “restorative justice” practices (which Waller mentions), but can also involve practices that in some ways resemble current punitive practices. For example, to restore both direct and indirect victims of a violent crime to their rightful prior level of safety and security, it might be necessary for the offender to be incarcerated, or monitored, etc. But pure restitution is still distinct from punishment, because its aim is different—the aim is not to make the offender suffer. The aim is to make the offender “pay” what is “owed” to the victim. By analogy, if we compel a debtor to repay a debt, it may be said that in the process we cause harm (a harm that would be similar to a punitive fine)—but the aim is in no way retributive (or at least it needn’t be). The aim is ultimately restorative—and so forcing someone to repay a debt that they rightfully owe is still distinct from punishment.

This is an extremely cursory sketch of the pure restitution system; I can’t do it full justice in the space I have here. For the sake of brevity, I will restrict myself to a couple points that are particularly salient for my purposes. First, the pure restitution model, although it forgoes punishment, does not forgo moral responsibility. On the contrary, it depends on it. As Boonin describes it, one of the necessary conditions for justifiable compelled restitution is that an agent must be morally responsible for the harm that she has caused. If her moral responsibility for her harmful action is mitigated (if she is suffering a severe psychological disorder, say), then she is not responsible for making reparations (how we deal with her then may be something more like the “quarantine” model of criminal justice that some recent skeptics have defended9).

A second relevant point is that while restitution is committed to moral responsibility, it also places a heavy emphasis on outcomes, in particular outcomes for the victims of crimes. This allows more room to accommodate what Waller (in my view rightly) characterizes as some of the respective advantages of social democratic societies over neoliberal societies, and of less punitive systems over more punitive systems. Take Waller’s air traffic controller example. In a system of pure restitution, we would be committed to doing whatever works best to avoid putting passengers (the potential victims) at unnecessary risk. From the standpoint of pure restitution, if inflicting harms on individual air traffic controllers for errors is ineffective at achieving this goal, then it shouldn’t be done. As restitutionists, our aim is to do whatever produces the best outcome for victims (including potential victims—people who are put at unnecessary risk of harm). We can say that while still holding air traffic controllers morally responsible—in particular, by holding them morally responsible for reporting errors, making them responsible for doing their part to make the system as a whole work as effectively as possible, etc.

IV. Conclusion

Waller’s book is a tremendous contribution to the debate over free will and moral responsibility. Waller’s arguments (both in this book and in his earlier work) have forced me to reconsider some of my own views, especially about the value and necessity of institutions like punishment. While I remain (stubbornly?) committed to the existence of moral responsibility, my view of the kind of moral responsibility system that can be justified has shifted as a result of thinking through Waller’s arguments (as well as the arguments of other powerful moral responsibility skeptics). For that I am grateful, and I am excited to learn more from him in his responses to all of the essays in this symposium.

References

Barnett, Randy E. “Restitution: A New Paradigm of Criminal Justice.” Ethics 87:4 (1977) 279–301.

Boonin, David. The Problem of Punishment. Cambridge: Cambridge University Press, 2008.

Caruso, Gregg D. “Free Will Skepticism and Criminal Behavior: A Public Health-Quarantine Model.” Southwest Philosophy Review 32:1 (2016) 25–48.

Cavadino, Michael, and James Dignan. “Penal Policy and Political Economy.” Criminology and Criminal Justice 6:4 (2006) 435–56.

———. Penal Systems: A Comparative Approach. London: Sage, 2006.

Levy, Neil. Consciousness and Moral Responsibility. 1st ed. Oxford: Oxford University Press, 2014.

McKenna, Michael. “Compatibilism & Desert: Critical Comments on Four Views on Free Will.” Philosophical Studies 144:1 (2009) 3–13.

Pereboom, Derk. Free Will, Agency, and Meaning in Life. Oxford: Oxford University Press, 2014.

Strawson, Galen. “The Bounds of Freedom.” In The Oxford Handbook of Free Will, edited by Robert H. Kane, 441–60. Oxford: Oxford University Press, 2002.

Waller, Bruce N. Against Moral Responsibility. Cambridge: MIT Press, 2011.

———. The Stubborn System of Moral Responsibility. Cambridge: MIT Press, 2015.

Bruce Waller’s The Stubborn System of Moral Responsibility (2015) is an engaging, thoughtful, well-researched discussion of the pervasive belief in moral responsibility. Waller offers extensive discussion of why this belief is so common and why he thinks it would not be damaging to jettison it.  Indeed, he not only believes there would be no harm from widespread denial of moral responsibility, he argues that widespread rejection of belief in moral responsibility would be a benefit.  As we see in other works by Waller (1990, 1998, 2011), the argumentation in this book is very well-informed by both the philosophical literature and empirical research in psychology, neuroscience, and sociology.  Unlike Waller, I am not ready to reject the belief in moral responsibility.  I believe that we may well possess a kind of libertarian free will that can ground assertions of moral responsibility, and, like Robert Kane (1996, 2007, 2011) and Mark Balaguer (2010, 2014), I don’t believe this requires mystery and miracles.1  Furthermore, like Saul Smilansky (2000), I think that denial of moral responsibility is more problematic than Bruce Waller thinks it is.  In what follows, I will just develop one particular concern I have with jettisoning the belief in moral responsibility, namely the problems this raises with offering adequate protections of people who have committed no crimes – the problem of punishing the innocent.

In Bruce Waller’s book he argues that no persons are morally responsible for what they do.  Because of this he believes no one deserves punishment for their criminal conduct or wrongdoing.  Nonetheless, he believes that despite the injustice of punishment, we should continue to have a system of punishment, which includes imprisonment of dangerous, violent criminal offenders (Waller 2015, 194-196).  To be clear, Waller is very critical of many penal systems as they exist in the United States today and in many other countries.  He is opposed to the death penalty and harsh prison conditions, such as we see in modern day supermax prisons, and he thinks that many people are doing time in prisons that should instead be placed under house arrest. He also thinks more should be done to offer psychological treatment, counseling, and education for those criminals whom we must detain. According to Waller, to punish people is unjust to them as they do not deserve the harsh treatment which constitutes the punishment.  However, he believes that societies have the right to protect themselves from the harms caused by criminal behavior.  Thus, he sees the punishment of people who do not deserve their punishment as the choice between the lesser of two evils: (a) the allowing of continued suffering of members of society due to criminal conduct or (b) punishing a person who does not deserve to be punished.

According to Waller, to punish people is unjust to them as they do not deserve the harsh treatment which constitutes the punishment.  However, he believes that societies have the right to protect themselves from the harms caused by criminal behavior.  Thus, he sees the punishment of people who do not deserve their punishment as the choice between the lesser of two evils: (a) the allowing of continued suffering of members of society due to criminal conduct or (b) punishing a person who does not deserve to be punished. Waller believes that those punished do not deserve their punishment, but we should continue to punish criminals to protect other members of society.  I have significant concerns that when we jettison the belief in moral responsibility and we think that no one is deserving of punishment, we are then opening the door to a mode of thinking that would justify policies and practices that would lead to the punishing of more people who have committed no crimes.  As shown in Smilansky (1990), it can be plausibly argued that lowering the standards of evidence for criminal convictions would allow us to take more criminals off the streets and this would serve the greater good of society.  As it is now in the United States, criminal convictions require evidence beyond a reasonable doubt.  Because of this high evidentiary standard, many criminals avoid punishment.  If a lower standard of evidence were used, then more criminals would be convicted and punished.  This would benefit society by reducing the harms caused by crime, the fear of crime, insurance and policing costs, etc.

Waller believes that those punished do not deserve their punishment, but we should continue to punish criminals to protect other members of society.  I have significant concerns that when we jettison the belief in moral responsibility and we think that no one is deserving of punishment, we are then opening the door to a mode of thinking that would justify policies and practices that would lead to the punishing of more people who have committed no crimes.  As shown in Smilansky (1990), it can be plausibly argued that lowering the standards of evidence for criminal convictions would allow us to take more criminals off the streets and this would serve the greater good of society.  As it is now in the United States, criminal convictions require evidence beyond a reasonable doubt.  Because of this high evidentiary standard, many criminals avoid punishment.  If a lower standard of evidence were used, then more criminals would be convicted and punished.  This would benefit society by reducing the harms caused by crime, the fear of crime, insurance and policing costs, etc.The reason we don’t do this is because such a policy would lead to the conviction and sentencing of more innocent people and it is widely believed that it is a grave injustice to punish innocent people for crimes they did not commit.  The innocent are not morally responsible for the crime and so they do not deserve to suffer the punishment for it.  Thus, we require high standards of evidence for criminal convictions.

The reason we don’t do this is because such a policy would lead to the conviction and sentencing of more innocent people and it is widely believed that it is a grave injustice to punish innocent people for crimes they did not commit.  The innocent are not morally responsible for the crime and so they do not deserve to suffer the punishment for it.  Thus, we require high standards of evidence for criminal convictions.However, if, as Waller thinks, no persons are morally responsible for what they do, then no one deserves punishment.  Thus, is it is no more unjust to punish those who have not committed crimes than it is to punish those who have committed crimes.  This being the case and given the additional benefits to society which would arise from lowering the standards of evidence for criminal convictions, we would have little or no reason not to lower the standards of evidence.  In this way it can be argued that the belief that no persons are morally responsible easily leads to insufficient protection of the innocent.

However, if, as Waller thinks, no persons are morally responsible for what they do, then no one deserves punishment.  Thus, is it is no more unjust to punish those who have not committed crimes than it is to punish those who have committed crimes.  This being the case and given the additional benefits to society which would arise from lowering the standards of evidence for criminal convictions, we would have little or no reason not to lower the standards of evidence.  In this way it can be argued that the belief that no persons are morally responsible easily leads to insufficient protection of the innocent.

In his book Waller confronts this suggestion head on, arguing that it is false.  In doing so, he defends both a relevant weak thesis as well as a relevant strong thesis.  The weak thesis states that belief in moral responsibility does not discourage the punishment of the innocent; the strong thesis states that belief in moral responsibility actually contributes to the punishment of innocent people.He argues that the more a culture is committed to individual moral responsibility the more obsessed with punishing it becomes and the less concerned with

He argues that the more a culture is committed to individual moral responsibility the more obsessed with punishing it becomes and the less concerned with protection of the innocent.  Indeed, he contends that belief in moral responsibility is the wrong tool to use in protecting the innocent, “It’s not like using a sledgehammer to drive a nail; it’s more like using gasoline to put out a fire (2015, 223).”  Here Waller makes his strong thesis manifest; he regards the belief in individual moral responsibility as actively contributing to the punishment of innocent people.He notes that in the United States various legal and police tactics are commonly used which are known to be unreliable.  Due to the use of these tactics more innocent people are convicted and punished for crimes they did not commit, yet despite

He notes that in the United States various legal and police tactics are commonly used which are known to be unreliable.  Due to the use of these tactics more innocent people are convicted and punished for crimes they did not commit, yet despite this the government does nothing to stop the use of these tactics.  Among these tactics are: the use of the testimony of jailhouse informants; the use of faulty crime lab techniques; the use of often overworked and sometimes incompetent public defenders; the use of plea bargains; and the suspension of the right of habeas corpus in dealing with suspected terrorists in fighting the “war on terror” (2015, 224-228).  Waller notes that the United States is a country in which it is widely believed that people are morally responsible for their actions and yet in the United States these practices continue to be used while it is known that they lead to the conviction and punishment of many innocent people.  Thus, he concludes that belief in individual moral responsibility does not encourage protection of the innocent from punishment; rather, it actually promotes the punishment of the innocent.

In further support of his position, Waller talks about how the belief in individual moral responsibility makes us believe that criminals deserve to be punished and it makes us eager to see them punished.

When a crime is committed, there is a cry for “justice”; that is, a cry for the punishment of the person who committed the crime, and who clearly – because morally responsible – justly deserves to pay the price.  The more heinous the crime, the stronger the demand for just deserts.  That powerful demand overwhelms concern about whether the person charged is guilty…(Waller 2015, 228).

According to Waller, the belief in moral responsibility leads to belief in just desert and this makes us eager to see criminals punished.  However, he also believes this eagerness often “overwhelms concern about whether the person charged is guilty.”  In this way he thinks the belief in moral responsibility actually promotes punishing the innocent.

As noted above, Waller is defending both the strong thesis that belief in individual responsibility actually contributes to the punishment of the innocent and the weaker thesis that the belief in moral responsibility does not discourage punishment of the innocent.  In what follows, I will show that neither of these theses is well supported by Waller.

Concerning the stronger thesis that the belief in moral responsibility actually contributes to the punishment of the innocent, I would note that Waller provides no significant evidence for this.  He is quite correct that in the United States there is widespread belief in individual responsibility; and, sadly, in the U.S. the problematic use of jailhouse informants is widespread, as is the use of faulty crime lab techniques and the use of overworked and sometimes incompetent public defenders.  It is also true that plea bargains are commonly used and habeas corpus rights have been suspended in dealing with suspected terrorists.  It is true as well that these practices are known to contribute to the conviction and punishment of innocent people and the United States government has made little, or no, effort to change these things.  However, this simply is not evidence that the belief in individual moral responsibility contributes to the punishment of the innocent.  These points do nothing to establish a causal connection between belief in moral responsibility and the use of these practices which lead to the conviction and punishment of many innocent people.  All that we really have here is evidence that in the U.S. where belief in individual moral responsibility is common there is also widespread use of legal practices and crime detection techniques which increase the frequency with which innocent people are convicted and punished.  Such a correlation does not establish causation.

The closest Waller comes to making the case that in the U.S. belief in moral responsibility contributes to punishing of the innocent is when he says, “When a crime is committed there is a cry for ‘justice’; that is a cry for the punishment of the person who committed the crime and who – because morally responsible – justly deserves to pay the price (2015, 228).”  Here, instead of establishing the mere correlation between the prevalence of belief in moral responsibility and the punishing of the innocent, Waller suggests how he thinks the belief in moral responsibility actually contributes to the punishing of the innocent.  The basic idea is that the belief in moral responsibility makes us so strongly desire to see that justice be done by punishing the guilty that we fail to pay sufficient attention to whether those punished are in fact guilty.  The belief in moral responsibility grounds the belief that those who commit crimes should be made to suffer punishment and the latter belief fuels the desire to see that the guilty be punished.  Waller adds the “powerful demand [for just deserts] overwhelms concern about whether the person charged is guilty (2015, 228).”

Here, indeed, there is a causal story being told and not mere clarification of disturbing correlations  And Waller is clearly correct to assert that belief in moral responsibility leads to the belief that those guilty of crimes should be made to suffer punishment and this leads to the desire to see the guilty punished.  However, this by itself does not establish that the belief in moral responsibility contributes to the punishment of innocent people.  To get there one has to add in another factor as Waller does when he asserts that the demand for just deserts overwhelms concern that the charged is guilty.

Now it is true that sometimes people are so eager to see that someone get punished for a crime that they no longer sufficiently attend to or care whether the person punished is in fact guilty.  But when this happens people are not led by the desire that the person who committed the crime be punished; rather, as stated, they are led by the desire to see that someone be punished.  Strictly speaking, it is not the belief in moral responsibility and the consequent desire that those who commit crimes get their just deserts which leads to the punishment of the innocent.  Rather, it is the irrational urge to punish someone whether guilty or not that leads to this.

Nonetheless it still might be thought that what triggers this irrational urge to see that someone whether guilty or not be punished is ultimately the belief in moral responsibility.  The latter belief leads to the belief that someone deserves to pay for his crime.  In this way it could be said that the belief in moral responsibility causally contributes to the punishment of the innocent.  However, to argue in this fashion is highly problematic.  Perhaps it’s true that were it not for the belief in moral responsibility then no one would feel that someone deserves to pay for his crime.  But to then say that this belief encourages the punishment of the innocent doesn’t follow.  After all, one can believe in moral responsibility and remain steadfast in his commitment to seeing to it that only those who are clearly guilty of committing crimes should be punished.  So, the belief in moral responsibility is clearly not sufficient for the urge to punish the innocent.

At best the belief in moral responsibility may be one of the background beliefs that leads some people to end up punishing innocent people.  But this is a very weak claim.  Consider by analogy that were it not for the belief that Jews exist there would have been no Holocaust.  But do we want to establish some causal connection between this belief and the Holocaust?  Were it not for the belief that Jews exist, then I suppose the Holocaust would not have occurred.  However, to get from this belief to the occurrence of the Holocaust requires the addition of so many other factors that the causal link between the belief that Jews exist and the occurrence of the Holocaust is extremely minimal.  So, too, there is a lot more going on that leads to the punishment of the innocent than the belief in moral responsibility.  So much more in fact that the causal link between this belief and the punishment of the innocent is minimal.

It is not at all clear that the belief in moral responsibility triggers the irrational desire that someone – whether guilty or innocent – must be punished.  Interestingly, in his book Waller himself puts his own finger on a relevant rival account of how this irrational urge might arise.  In Ch.3 “The Strike-Back Roots of Moral Responsibility” he talks about how human beings have an urge to strike at others when they have been wronged or threatened in some way; and he says there is also empirical evidence of this in other animals.  He notes how oftentimes in human beings this urge to strike back when wronged or threatened is directed at those who’ve wronged us or threatened us, but just as often it is directed at others who pose no threat or who’ve done no wrong.  He notes how this tendency has been identified in nonhuman animals as well, and he talks about how being wronged or threatened creates damaging stress for us that we alleviate by lashing out at others whether they deserve it or not.

Contra Waller, what I want to suggest here is that the tendency of human beings to punish the innocent is more likely a product of this irrational urge to strike back which we share with nonhuman animals than it is a product of belief in moral responsibility.  When someone in our community has been harmed through crime, this creates stress in us as it does among other communal animals.  Suppose we cannot know for sure who has committed the wrong.  Even so, the stress is there along with the urge to strike back.  The urge is strong, and we want to satisfy it so strongly that we are willing to convict and punish someone without sufficient evidence of their guilt.  Notice that here the belief in moral responsibility doesn’t drive the punishment of the innocent.  Rather, it is the animal urge to strike back whether those we strike are guilty or not.

As noted Waller’s strong thesis is that the belief in moral responsibility contributes to the punishment of the innocent.  But much of what he says just shows that in the United States where belief in moral responsibility is common the innocent are frequently punished and in the United States many legal and police tactics known to contribute to the punishment of the innocent persist.  None of this shows that the belief in moral responsibility contributes to punishing the innocent.  When Waller does get around to forwarding a causal hypothesis on the issue, he suggests that the strong desire to see that someone be made to suffer for his wrongdoing overwhelms the careful consideration of whether the accused is guilty.  In this way he thinks the belief in moral responsibility contributes to the punishment of the innocent.  However, as I’ve shown not even this makes a convincing case that the belief in moral responsibility contributes to punishing the innocent.  Rather, as Waller himself argues, there is a common and powerful urge in human beings and even in many nonhuman species to strike back or lash out when one is wronged or threatened.  It may not be the belief in moral responsibility that leads to the punishment of the innocent, rather it may be this irrational urge which we share with nonhuman animal species.  This rival hypothesis is just as plausible as Waller’s hypothesis.  Thus, Waller gives us no good reason to think that belief in moral responsibility contributes to the punishment of the innocent.

Interestingly, I would note that if my rival hypothesis is correct then instead of contributing to the punishing of the innocent the belief in moral responsibility actually helps discourage the punishing of the innocent.  For suppose we do have this common and strong urge to strike back or lash out when harmed or threatened; and we are inclined to do this as it helps relieve our stress.  As Waller himself notes, many humans as well as many animals will lash out at the innocent to relieve their stress.  What I want to suggest is that if all of this is correct, then, rather than contributing to the punishing of the innocent, the belief in moral responsibility and recognizing it as the ground for just desert and justified punishment actually discourages the punishing of the innocent.  The belief in moral responsibility and the recognition that it is the basis for just desert may actually be what keeps many of us from lashing out at others in inappropriate ways.

Imagine that I’ve been treated badly at work by my boss.  I am stressed and I’d like to relieve this stress by striking back at him, but I know that would only make matters worse.  I come home stressed and my wife and children annoy me, and I want to lash out at them.  Perhaps what keeps me from doing so is my recognition that they are not morally responsible for any wrongdoing and, thus, deserve no harsh treatment.  Or imagine that I am a member of a jury dealing with a trial in the case of a terrible rape or murder, and I know that I and members of the jury and the broader community would love to see someone punished for this.  But remembering that people are morally responsible for their deeds and that only those morally responsible for bad deeds deserve to be punished, I am hesitant to convict the accused as the evidence of his guilt is insufficient.  Contra Waller, there is some pretty good reason to think that the belief in moral responsibility actually plays a significant role in discouraging the punishment of the innocent.

Let me remind the reader that Waller claims not only (1) that belief in moral responsibility does not discourage punishment of the innocent, but also (2) that belief in moral responsibility actually encourages the punishment of the innocent.  Much of what I have said in this section has been intended to undermine his case for (2), the stronger thesis; but the preceding paragraph contributes to the case against (1) – his weaker thesis.  In the preceding paragraph I suggest that belief in moral responsibility and recognizing its connection to justified punishment may actually be what keeps many of us from lashing out at innocent people in unjustified ways.

Waller will most likely reject this, as in his book he states, “One might logically suppose that those most insistent on moral responsibility and justified punishment would be most careful about finding the guilty party and being certain of that guilt; empirically, the opposite is the case (2015, 228).”  He thinks there’s too much empirical evidence against the hypothesis that belief in moral responsibility discourages the punishing of the innocent.  Again, if it did discourage this then why is it that in the United States where there is such a widespread and strong commitment to individual moral responsibility it is so common to find innocent people in prison and such a willingness to allow faulty legal and police tactics to persist when we know they often result in the punishment of the innocent?  According to Waller, if the belief in moral responsibility discouraged punishing the innocent, then this would not happen.

However, such a retort to my argument would be problematic.  Above I explain how it is that belief in moral responsibility and recognition of its connection to justified punishment serves as a corrective that keeps many people from lashing out at the innocent.  The mere fact that in the United States where belief in individual moral responsibility is common and yet many innocent people are punished and the government does nothing to stop the use of faulty tactics which lead to this is no evidence that the belief in moral responsibility does not discourage punishing the innocent.  Perhaps there would be even more punishment of the innocent if we didn’t believe that people are responsible.  Additionally, it is certainly possible that the belief in moral responsibility discourages the punishment of the innocent in the way I’ve suggested, while in the United States there are other values and beliefs at play that explains why it is nonetheless the case that many faulty legal and police tactics continue to be used and many innocent people get punished.

What I want to suggest is that while belief in moral responsibility is a corrective that discourages punishment of the innocent, other factors are at work in our society which leads us to engage in the use of legal and police tactics which are faulty and, thus, contribute to the punishment of the innocent.  While we value justice and only want to see the guilty punished for crimes, we also want to be secure in our persons and property.  This desire for safety and security against criminal threats can make us blind to the dangers posed by certain legal and police tactics that can lead to the punishment of innocent people.  Contributing to this blindness are systemic racism and classism.  Large segments of the population are not likely to be one of the accused innocent; the latter are more likely to be poor or nonwhite.  Thus, we are disinclined to be as concerned for those who will be unjustly punished.

Consider how Waller cites the United States government’s suspension of the right to habeas corpus in dealing with terror suspects as part of the war on terror.  He considers this as part of the evidence that belief in moral responsibility does not contribute to protection of the innocent.  But, as I have argued, the belief in moral responsibility may well contribute to protection of the innocent, while other causal factors may override this concern.  In the case of the war on terror, we are so concerned with our own security and safety and so little concerned with those who don’t look like us or speak our language or share our values that we are willing to overlook our concern for protecting the innocent.

In this essay I’ve tried to show that when philosophers, such as Waller, say that we lack moral responsibility in the basic desert sense and then they endorse the detention of violent criminals for the protection of society, they are forwarding a view that is morally problematic in significant respects.2  In particular, I have argued that such a view will have a very hard time explaining why we should not enact policies and procedures, such as lowering the evidentiary standards for criminal conviction, which would lead to the detention of more innocent people who have committed no crimes.  To enact policies and endorse procedures which we know will lead to more occasions in which innocent people are punished is to show insignificant concern for the dignity and worth of individual human beings.  As such, we should have deep moral reservations about the position of responsibility deniers who endorse the detention of violent criminals.

References

Balaguer, M. (2010).  Free Will as an Open Scientific Problem.  (Cambridge, MA: MIT Press).

—-. (2014).  “Replies to McKenna, Pereboom, and Kane,” Philosophical Studies 169: 71-92.

Caruso, G.  2016.  “Free Will Skepticism and Criminal Behavior: A Public Health-Quarantine Model,” Southwest Philosophy Review 32 (1).

Kane, R.  1996.  The significance of free will.  New York: Oxford University Press.

—-.  2007a. “Libertarianism.” In J.M. Fishcher, R. Kane, D. Pereboom, and M. Vargas, Four Views on Free Will.  Oxford: Basil Blackwell, pp.5-43.

—-.  2011.  “Rethinking free will: new perspectives on an ancient problem.”  In R. Kane, ed. The Oxford Handbook of Free Will.  New York: Oxford University Press, pp.381-404.

Lemos, J. (2007).  “Kanian Freedom and the Problem of Luck.”  Southern Journal of Philosophy 45: 515-532.

—-. (2011a). “Wanting, Willing, Trying and Kane’s Theory of Free Will.”  Dialectica 65: 31-48.

—-. (2011b). “Kane’s Libertarian Theory and Luck: A Reply to Griffith.”  Philosophia 39: 357-367.

—-. (2013).  “Hardheartedness and Libertarianism.”  Philo 16: 180-195.

—-. (2014). “Libertarianism and Free Determined Decisions.  Metaphilosophy 45: 675-688.

—-. (2015). “Self-forming Acts and the Grounds of Responsibility.”  Philosophia 43: 135-146.

—-. (under review).  “Moral Concerns About Responsibility Denial and the Quarantine of Violent Criminals.”

Pereboom, D. 2001.  Living Without Free Will.  (Oxford: Oxford University Press).

—-. 2014.  Free Will, Agency, and Meaning in Life.  (Oxford: Oxford University Press).

Smilansky, S.  1990.  “Utilitarianism and the ‘Punishment’ of the Innocent: The General Problem.”  Analysis 50: 256-261.

—-.  2000.  Free Will and Illusion.  Oxford University Press.

Waller, B.  1990.  Freedom Without Responsibility.  Philadelphia: Temple University Press.

—-.  1998.  The Natural Selection of Autonomy. Albany: SUNY Press.

—-.  2011.  Against Moral Responsibility.  (Cambridge, MA: MIT Press)

—-.  2015.  The Stubborn System of Moral Responsibility.  (Cambridge, MA: MIT Press).

In The Stubborn System of Moral Responsibility, Bruce Waller continues his efforts to defend what I have called a “happy hard determinist” interpretation of the implications of the absence of libertarian free will, with respect to moral responsibility.1 Uniquely, Waller accepts compatibilist interpretations of free will, but argues that they do not suffice for moral responsibility and desert. I include his view among the “happy” hard determinists because the picture he draws of life without belief in moral responsibility (and the concomitant notions) is distinctly optimistic: living without the “system of moral responsibility” would be, all things considered, much better than living as we currently do with this system.

A striking feature of The Stubborn System of Moral Responsibility is its efforts at providing an “error theory” (ET) as to why belief in moral responsibility persists, despite (as he claims) the paucity of philosophical grounding for such belief.2 As Waller puts it, “It is clear that the commitment to moral responsibility is stronger—among philosophers and the folk—than the arguments in its favor could justify. So what are the other factors that make belief in the moral responsibility system so robust and resilient?” (vii; my emphasis). Such “other factors” is what I propose to focus on in this brief essay. The “unconventional weapons” of philosophical debate involve error theories but go beyond them, to ad hominem considerations more broadly.

The legitimacy and importance of such “error-theory”-like arguments (on all sides), or more broadly “unconventional” argumentation, is a difficult and under-discussed topic. A minimalist interpretation would see it as merely being helpful for one’s own side. So many smart people oppose our view, that giving a different (psychological, social, mistake-involving) explanation of why they continue to do so helps to put “our side” at ease, and “rally the troops.” More ambitiously, ET-like arguments can be “softening” arguments: once you see them, one might come to believe that one needs to be more skeptical, to rethink, and at least consider more seriously the case of those opposed to you. And most ambitiously, these arguments might serve as knock-down arguments, as game-changers, in themselves: once you see ET explanation X for belief B, you come to realize that it is X, and not the purported arguments for B, that is doing the work and getting people to believe in B.

There are in any case not many knock-down arguments in philosophy, and one might be very skeptical of the possibility of uncovering them here. However, the alternative nature of ET-like arguments actually plays in their favor. Consider the analogy of a typical psychoanalytic explanation. One did or said something, holding oneself to have done so for certain good reasons. Then comes a Freudian type of insight, and (if one accepts it), changes the game at a stroke. What was actually happening in, say, one’s interaction with a friend, one comes to believe, is not at all what one thought, but rather something very different—an unconscious “transference” or engagement with a long dead parent, say. However, in the philosophical context it is probably mostly the second, “softening” function that we can hope for, from these unconventional arguments. On the assumption that one finds great merit in one’s philosophical arguments, it is unlikely that a “debunking,” alternative explanation will have knock-out effectiveness. Yet this middle of the road function suffices to make these type of arguments worth making and considering.

I do not have the space here to explore Waller’s purported ET-type explanations, their force, and the extent to which they ought to lead believers in moral responsibility to reconsider their views. What I will do here, rather telegraphically, is to raise four issues that I consider important, on the other side of the debate: namely, four “error theory”-like explanations of why people such as Waller deny moral responsibility, and deny the overwhelmingly negative effects of an abandonment of belief in moral responsibility, despite (what I consider to be) the weakness of their arguments. So this will not be a direct engagement with Waller’s arguments, but an attempt to contribute to the sort of “unconventional” debate he has opened in this book.

1. Monism

A prevalent error in the free will debate is to think of the compatibility question, the question whether free will and moral responsibility are compatible with determinism (or with the absence of libertarian free will—LFW—irrespective of determinism) as either-or. Either we say Yes, and are then compatibilists, or No, and then we are hard determinists. However, as I pointed out a generation ago,3 this is a mistake. There might be and, in fact, there probably are forms of free will and moral responsibility that are compatible, and some that are not. Compatibilist distinctions track free will and moral responsibility (or their absence), and so people can be free and responsible or not to various degrees, even in a world without LFW. Yet, ultimately, in such a world no one could have the sort of control that LFW was supposed to give, and everything we do is an “unfolding of the given,” beyond our control. Both levels matter. In some contexts one is dominant, and sometimes both are important. The truth is neither is 100 percent compatibilist nor 100 percent incompatibilist but a combination that incorporates, in part, both sets of insights. I will not repeat the case for compatibility-dualism here;4 the point is that “compatibility monism” has had a misleading and very important effect on the debate.

When first hearing about the free will problem, people tend intuitively to pick a side on the compatibility question, and then almost invariably stay there. Since they also tacitly assume the “Assumption of Monism,” and feel that to give up some ground would risk giving up everything, they then largely psychologically shut out the case for their opponents’ position. The “monism” is not only a philosophical mistake (not seeing that compatibility-dualism is possible) but, in practice, a highly salient psychological bias, which connects to our natural myopic inclinations to see only the side of any debate that appeals to us, and dismiss the opposite side. This does not of course affect only hard determinists.5 Since we need not be “monists,” and can combine the insights of both sides, overcoming this harmful bias is crucial.

2. Perfectionism

Perfectionism is a common psychological trait. In the free will context it is widely prevalent among hard determinists, who deny free will (Waller is an exception here) and moral responsibility, because they set the bar for these extremely high. As they present it, if we cannot completely create ourselves, or be deserving in the strongest sense, or altogether avoid luck, then we simply lack free will and moral responsibility. Substantial philosophical disagreement here would confront hard determinists with compatibilist (or compatibility-dualist) claims for moderation. There is a significant difference between those operating under severely constraining irrational phobias and normal people, in their capacity to function freely and responsibly. Being cured by a deterministic process of therapy makes you freer and with a greater capacity for responsibility. There is likewise an important difference between a child and an adult, in their capacity to take responsibility and behave responsibly. This will not reach libertarian proportions, and as I have often argued that as well often matters (e.g., in the importance of the ultimate injustice involved in severe punishment). But if one allows one’s three-year-old into one’s car with the key in the ignition and he wrecks the car, then the child is in no significant way responsible, while a similar scenario with a twenty-year-old is very different. One can expect, hold to account, and blame one’s older child in morally defensible ways, but not the younger. By setting the philosophical bar unreasonably high, hard determinism blurs such crucial distinctions; and misrepresents moral and personal life. Hard determinists make moral responsibility impossible, and then find that it does not exist. But this is in large measure psychological perfectionism, rather than anything that has sufficient justification philosophically.

3. Optimism

I have written a paper decrying the prevalence of unreasonable optimism on all sides of the free will debate.6 Optimism is a very important feature in hard determinist discourse, and particularly of course with “happy hard determinists” such as Waller. We have strong indications that most people hold tacit libertarian beliefs, yet their abandonment is cheered upon, with a radical optimism making typical hard determinists feel that everything, somehow, will be for the best—and indeed that a rosy future awaits us if we would only give up on the belief in moral responsibility and desert. People will continue to appreciate and respect themselves and others, even if they come to believe that each and every action was long predetermined and not ultimately within their control. They will continue to take seriously the importance of innocence (in the traditional sense) and be averse to risking the punishment of the innocent when useful, even if they fully incorporate the hard determinist belief that, morally, the guilty are no more so than the innocent. People will continue to hold themselves to the highest moral standards in their behavior and not allow themselves to succumb to temptations, even once they come to believe that whatever they do, they will have a complete exonerating retrospective excuse from blame and responsibility.7 To me this all seems incredible, and at best under-justified by the arguments. A systematic, inherent psychological over-optimistic inclination carries much of the explanatory weight.

4. One’s Beliefs and One’s Life

A fourth “unconventional” sort of argument claims that one’s actual life reactions and practices suggest that one does not really or fully believe what one claims to believe. Spinoza famously said that even those who write essays in praise of modesty, invariably remember to put their name under the heading. Van Inwagen tells how a moral responsibility denier said, when some of his books were stolen, that that was a shoddy thing to do (quoted by Waller at p. 31). P. F. Strawson’s famous “Freedom and Resentment” is, in part, based upon a related insight that a full and normal human life seems to require free will and moral responsibility.8 Libertarianism and compatibilism have a wealth of resources for making distinctions among people, and justifying commonplace reactions and practices. Hard determinism is much poorer. This opens the adherents of this position to unique difficulties. As before, I cannot enter into detailed illustrations. But it seems to me that self-and-other-reflection will be quick to show how difficult it is to be a hard determinist, how even hard determinists are not really living up to their claims (and not due to akrasia) and, in any case, how implausible all this makes “happy hard determinism” in particular. When a hard determinist seeks a babysitter for her children, it seems unlikely that deep inside she is not seeking someone who will hold herself accountable, believe herself responsible, and fear blame if things go wrong. And when she reflects on the efforts and sacrifices of people whom she loves, it is doubtful whether she really thinks that a hard determinist picture would not make a huge difference to her appreciation and love; or to the way those loved ones see themselves and their merits.

To conclude. In The Stubborn System of Moral Responsibility, Bruce Waller puts at center stage arguments of a type that I have called “unconventional”—not typical philosophical justifications of one’s position, but alternative explanations of the stubbornness of the erroneous beliefs of his opponents, more psychological and sociological than philosophical. There are some risks involved in turning in such directions,9 yet I believe that this is an important project. In order to understand ourselves and our philosophy, we need to be made conscious of influential forces that are not strictly philosophical. I briefly raised four arguments that seek to challenge the hard determinist on Waller’s own unconventional playing field. I claim that hard determinists are typically overly defensive rather than seeing that their insights can be true without excluding those of their opponents (“monism”); that they are perfectionists who set the bar for free will and moral responsibility too high; that they are unreasonably optimistic as to the effect of the widespread acceptance of hard determinism; and do not convincingly live up to their declared beliefs. These four points invite Waller and other hard determinists to an “unconventional” debate.10

References

Mackie, J. L. Ethics. Harmondsworth, UK: Penguin, 1977.

Smilansky, Saul. “Compatibilism: The Argument from Shallowness.” Philosophical Studies 115 (2003) 257–82.

———. “Does the Free Will Debate Rest on a Mistake?” Philosophical Papers 22 (1993) 173–88.

———. Free Will and Illusion. Oxford: Oxford University Press, 2000.

———. “Free Will and Respect for Persons.” Midwest Studies in Philosophy 29 (2005) 248–61.

———. “Free Will: Some Bad News.” In Action, Ethics and Responsibility, edited by Joseph Keim Campbell et al. Silverstein. Cambridge: MIT Press, 2010.

Strawson, P. F. “Freedom and Resentment.” In Free Will, edited by Gary Watson. Oxford: Oxford University Press, 2003.

Waller, Bruce. The Stubborn System of Moral Responsibility. Cambridge: MIT Press, 2015.

First, I would like to thank Bruce and all of the commentators for their engaging comments. I found all of the positions compelling in their own way. This is a wonderful platform for discussing responsibility.

I originally found myself on the side of eliminativism (during my PhD), in light of research in social psychology and cognitive science showing that we have less control and shallower character than we tend to think. But I could not break away from my concerns about epistemic injustice and the expressive role that praise and blame play, and could play, in our social imaginary (our shared set of epistemic resources and relationships). I came to the conclusion that, although moral responsibility is deployed in discriminatory ways in our culture—ways that harm and oppress historically disadvantaged groups—it is possible to reorient and reimagine our reactive attitudes, and deploy them in more healing and liberating ways.

In light of this, I’ve written responses to some of Bruce’s comments (and some other people’s comments as well), which bring to the fore concerns about social and epistemic injustice, and show how expressions of blame and praise can function in our discursive environment to repair and resist systems of oppression.

Thank you all so much for the interesting and enlightening discussion! I hope you will take my comments in the spirit of collegiality and cooperation in which they are intended.

Origin story: Just world theory

Bruce describes moral responsibility as a system created by human beings “to deal with a basic problem: we have a just world governed by a just god, and in this just world we must punish.” But I see moral responsibility as designed to deal with exactly the opposite problem: we have an unjust world governed primarily by white men—the people who created and reinforced our current moral practices and the social imaginary in which these practices operate; and in this unjust world we must blame and praise, punish and reward people according to principles that promote social justice and correct imbalances of power.

By ‘social imaginary’ I mean “the shared modes of representing and relating, which are prior to… particular beliefs and affects” (Medina 2012), and this epistemic background is infused with implicit biases that harm historically disadvantaged groups. Miranda Fricker calls this state of affairs “epistemic injustice” (2007). Although these biases have well-known implications for epistemic responsibility—that is, responsibility for our beliefs and attitudes—they also have implications for moral responsibility—specifically, our moral beliefs and attitudes. In conditions of epistemic injustice (as I argued in my recent post on ‘Flickers of Freedom’), the responsibility system is systematically distorted in ways that disadvantage and discredit marginalized groups, who are therefore unfairly blamed and punished, and lack the reputational power to defend themselves against false accusations; while privileged social groups are given too much credit and praise, and are therefore not held accountable for perpetuating myths that bolster their unearned privileges.

I would describe the ‘origin story’ for responsibility very differently than Bruce, in a way somewhat akin to Nietzsche’s genealogy of morals, which ascribes mainstream morality to a Master Class that deems its own members to be good, while deeming members of perceived outgroups to be bad. That is, the Master Class institutionalized and systematized their own outgroup bias, to the extent that it became invisible to them and took on the appearance of objective fact. According to Nietzsche, Christians then appropriated Master Morality and turned it on its head, construing (certain) historically disenfranchised group as morally superior to the socially privileged. (They also believed that this moral order was sanctioned by god, but the genealogical description provides a naturalistic explanation that renders theistic appeals moot).

Nietzsche did not discuss how, within Christianity, perceived outgroup members such as women and racialized minorities (and the many other intersectionalities) were dehumanized and systematically excluded from the system of morality. These were the unrecognized slaves internal to ‘Slave Morality.’ In recent years, theorists have pointed out that these social demographics are still very much excluded from, or marginalized within, Western social practices and relations—including, on scrutiny, the responsibility system—and this calls for a collective reappraisal of that system. In particular, we need to scrutinize the historic myths and stereotypes embedded in the social imaginary, which prevent us from accurately judging people’s credibility and moral standing on unbiased grounds, consistent with social justice.

Bruce, of course, denies that there is such a thing as a ‘fair’ or ‘just’ responsibility attribution; but presumably he would admit that there is such a thing as a fair and just society. Social feminist epistemologists and other theorists who work primarily on social justice argue that our responsibility system—indeed, all of our social practices—should promote social justice, and are justified to the extent that they play this role. A fair responsibility attribution, then, is simply one that facilities justice.

There is nothing mystical or metaphysically weird about the notion of a just moral attribution in this sense, just as there is nothing mystical or metaphysically weird about the notion of a just society. ‘Justice,’ whether used to describe a complete social order or a nested set of social practices, is naturalistic and controlled by human beings.

Systemic factors & collective responsibility

Bruce concedes in response to Ryan that we should focus more on collective agency as opposed to individual agency, but he takes this point to be compatible with responsibility eliminativism. Indeed, he thinks that belief in responsibility prevents us from inquiring into the deeper systemic causes of individual behaviour. This is parallel to the situationist claim (Doris 1998, Harman 1999) that ‘characterological explanations’ deter us from inquiring into the situational and systemic causes of human behaviour, which are allegedly more explanatorily potent and ecologically valid.

A more charitable way of interpreting the situationist challenge, however, is to see it as a reminder that we are highly susceptible to The Fundamental Attribution Error, which is a tendency to favour ‘internal’ explanations of other people’s behaviour, to the neglect of relevant ‘external’ or social factors. This claim implies that we should be more sensitive to situational/social explanatory factors, not (necessarily) that characterological and other ‘internal’ types of explanation are otiose. That is, it leaves open the possibility of “two-ply” explanations that include both moral/characterological/psychological dimensions and situational dimensions (Slote 2009: 288). As Michael Slote points out, when we describe a marble’s disposition to roll down a slope, we can appeal to external properties such as the angle of the slope and the force of gravity, as well as internal properties such as the sphericity and solidity of the marble (287). So too with human behaviour: neurophysiological constructs like ‘responsible agency’ (as it is typically described) admit of internal (psychological, neurocognitive, physiological) analyses as well as external (social, interpersonal) analyses. A robust explanation would include both ‘plies.’

In a similar vein, social feminist epistemologists like Helen Logino (2007) and Sandra Harding (2015) hold that there are multiple levels of explanation for any phenomenon, and that the epistemic value of an explanation is determined in part by our shared pragmatic goals. (This claim is justified in part by the underdetermination of theories by evidence). What are our pragmatic goals in constructing a model of human agency? Arguably, one of our goals should be to enhance people’s responsiveness to evidence of social injustice, to promote social justice and cooperation. If so, then a capacity for moral responsibility (howsoever cognitively specified) can be part of a valid model of human agency. This ‘internal’ level of explanation is compatible with a ‘situational’ level of explanation, where the latter identifies systemic factors (such as salient features of the social imaginary and social structures) that interact with our capacity for responsibility in various ways, both inculpating and exculpating. White ignorance (as described by Charles Mills) might be inculpating—that is, it might impute blame—for instance, when it enables a white person to rationalize his unearned white privileges and ignore countervailing reasons. This is what Fricker refers to as “motivated irrationality”—a kind of irrationality that is motivated by the person’s active investment in systems of oppression.

I will not provide a more extensive defense of this sense of responsible agency, but I think it is important to note that there is a prodigious literature that uses the terms ‘responsibility’ and ‘responsible agency’ in a perfectly intelligible sense and in ways mean to promote social justice and resist oppression. I am not convinced that these uses of responsibility are detrimental to society and should be eliminated.

A good collectivist model of responsibility, which leaves room for individual responsibility, is offered by Ann Cudd (2006). Cudd says that the justice system must dispense with the “individual actor thesis,” which “claims that crimes are committed by one person against another,” as well as the “level field hypothesis,” which holds that “criminal offenses are an upset in the existing balance of power between people” (210). The conjunction of these theses implies that men and women are equally situated, and men’s harms to women as a group are equal to women’s harms to men as a group. By dropping these faulty assumptions, we can change rape laws to introduce harsher sentences for rape, insofar as we can acknowledge that (1) women are a vulnerable social group that deserves extra protection, and (2) rape harms not only individual women, but women as a group.

Cudd’s collectivist position, in other words, increases individual liability for rape committed by a man against a woman, in light of systemic factors that affect the social meaning and consequences of this type of crime. The same logic extends to moral responsibility, viz., men who rape women deserve more individual blame because their action increases women’s vulnerability and harms women as a group.

It is far from obvious that collectivist explanations support, much less necessitate, eliminativism about responsibility. On the contrary, feminists and critical race theorists have by and large taken collectivist analyses to support a revisionary approach to responsibility (as well as legal liability) that maintains some notion of responsibility, but scrutinizes the biases embedded in our shared responsibility practices which harm historically disadvantaged groups. The assumption that responsibility exists is needed to identify those who are responsible for systemic discrimination and hold them accountable, while giving credit to active resisters.

In light of this, I would amend Ryan’s contention that “we all deserve blame for the failings of individual citizens, and it is our collective duty to try to rectify the situation” (Lake), to the more situated claim that members of privileged groups generally (though not always—it depends on the individual) deserve more blame and less credit than they typically receive, while members of disadvantaged groups generally (though not always) deserve less blame and more credit. The privileged have a special duty to rectify social injustice because they are disproportionately responsible for systems of oppression, and they also tend to have more access to epistemic resources (e.g., education), material resources, and reputational power, which they could (if they wanted) use to build coalitions and chained actions of resistance.

I believe that by changing our assumptions about who is responsible for what, we can promote social justice without dispensing with responsibility altogether. Indeed, revising and redirecting responsibility may be the more profitable course of action

The gap between criminal sanctions and nothing

Bruce and Gregg both seem to want to eliminate moral responsibility and focus on using criminal sanctions to contain or deter harmful behaviour, but I worry that this leaves a (fairly big) gap in which, when criminal sanctions are not licensed or enforced by the law, we have no way of sanctioning antisocial behaviours and promoting prosocial behaviours. This is what moral responsibility is supposed to do: hold people accountable for day-to-day harms that do not fall under the law.

Bruce argues that we should eliminate moral responsibility because belief in (retributive) responsibility supports limited market restrictions, economic disparities, a punitive justice system, and the other ills associated with neoliberal economics and the United States in general. He also seems to reject a consequentialist approach to responsibility, and instead defends a ‘take-charge’ model, which seems to reject moral responsibility in favour of (non-moral) self-efficacy.

Gregg offers a revisionary account of responsibility on which criminal sanctions should be allocated on the basis of a public health-quarantine model, which aims to promote the classic medical ethics principles of autonomy, beneficence, nonmaleficence, and justice. On this model, we would impose the least restrictive sanctions possible on “dangerous criminals” as well as those who commit “low-level” crimes (2016: 29-40). The public health-quarantine model also has implications for distributive justice, in that it implies that resources should be distributed according to medical ethics principles. This would shrink material inequality.

It is not clear to me whether Gregg is an eliminativist about moral responsibility or a revisionist who believes that moral responsibility attributions (praise, blame, etc.) should also be governed by medical ethical principles. If the latter, I am very amenable to his proposal. If, on the other hand, he is an eliminativist and is proposing a theory of criminal and social justice only, then I have concerns that are relevant to both his view and Bruce’s.

The main worry is that, while the criminal justice system is equipped to deal with some of the most egregious harms—like murder—(and unfortunately, in some jurisdictions, criminalizes benign actions like possessing small amounts of marijuana)—the law does not regulate the more banal (i.e., familiar, day-today) harms that many people face. For instance, although it is a hate crime in the U.S. to injure or threaten a member of a protected group on the basis of the person’s demographic attributes, it is not a crime to commit any of the innumerable ‘microaggressions,’ acts of casual misogyny and racism, and subtle as well as not-so-subtle exclusions that affect members of marginalized groups on a daily basis. If Bruce and Gregg want to shrink the prison system, then surely they would not want to criminalize these commonplace moral infractions; but if they are responsibility eliminativists, they also would not want us to hold people responsible for these banal harms.

We also cannot forget that the justice system does not treat everyone fairly. For instance, date rape is a criminal offense on paper, but most date rapists are never convicted. On some estimates, 94-98% of total rapists go free—including stereotypical ‘stranger rapists,’ who are the easiest to prosecute due to the greater availability of forensic evidence (Kim 2012). This means that women have very little legal protection against rape—in effect, we have to protect ourselves. Since most rapists are never prosecuted, the criminal justice system is neither a deterrent against rape, nor an effective ‘quarantine’ measure. This is another gap where moral responsibility would be useful: if we can’t prosecute rapists, we can at least censure and avoid them.

I’m not denying that we should fix the criminal justice system, but some harms will never be criminalized, and others will not be enforced in our lifetime. What do we do in the meantime?

This is where I see moral responsibility playing a role. When we blame people for ‘banal’ harms and un-prosecutable crimes, we express our disapproval to that type of behaviour. This kind of expression might be valuable in and of itself. As Barbara Houston observes, when we express blame we thereby “assert the correct relative value of the wrongdoer and the victim” and declare our affiliation with the victim and the victim’s social group (in cases of discrimination or group-related harms) (1992: 139). It is also notable that blaming takes on different meanings in just societies compared to unjust societies: in conditions of systemic injustice (like ours), failing to express blame can imply (i.e., be interpreted as) acceptance or condoning of the harmful act (Houston 1999: 138). The opposite of condoning is active resistance, which is often expressed in blaming attitudes and reactions, as well as in social justice movements that reconceptualise the role of blame and praise in our culture and deploy these attitudes in new ways. In our current social imaginary, there is a default presumption that rape survivors are to blame because they incite their rapist (on account of their appearance, attire, status, prior sexual history, or relation to the rapist), whereas rapists are either ‘ordinary men’ with innate, irrepressible (heterosexual) sex drives, or pathological cases. In either case, they are not seen as responsible for committing rape—women are blamed for being ‘too sexy.’

Similarly, racialized minorities are seen as more dangerous than privileged social groups, and therefore are more likely to be blamed for innocent behaviours. This is illustrated in ‘To Kill a Mockingbird,’ where Tom Robison is accused of rape against a backdrop of pernicious stereotypes about black men and white women. While we could (in principle) eliminate blame and praise, it is not clear that this discursive strategy would be more salutary than redirecting blame onto those who abuse their unearned privileges and perpetuate harmful myths about who deserves what. Marina Benjamin (2017) recently noted that when we treat rape as pathological—which was the default assumption in the mid-20th century—we promote a mysoginistic, racist social script on which men—especially white men—cannot control their sexual appetites in the presence of women, and therefore, rape perpetrated by a man on a woman is excusable. The evidence, however, shows that rape is not pathological: rapists respond to sanctions and rewards. This explains why 14.9% of male college students in the U.S. between 1985 and 1998 self-identified as rapists, whereas 23% of those in China and 60.7% of those in New Guinea currently do. These differential statistics owe to changing attitudes about rape, including, I believe, changing attitudes about who bears the responsibility for rape.

I am suggesting, in effect, that expressions of blame and praise are a component part of the social imaginary, and when they are used in counter-discursive ways (to combat prejudiced assumptions), they can be “epistemic counterpoints” to these myths, and conducive to social justice (Medina 2012: 269). Insofar as they play this role in our epistemic ecology, they are—in a very natural and non-mystical sense—justified.

One might object here that it suffices to identify the underlying causes of prejudice; we don’t also need to blame/praise individual actors and groups. But sociological and collectivist analyses—though useful—do not suffice to protect vulnerable individuals and groups from harm. To see this, compare the function of the responsibility system to the function of the criminal justice system.

One of the functions of the criminal justice system—according to Gregg, the main function—is to ‘quarantine’ dangerous criminals. As we saw, some crimes are un-prosecutable or very difficult to prosecute, and other harms are not crimes. What is our response to these harms? The responsibility system can, I believe, function in an analogous way to the criminal justice system, to identify and ‘quarantine’ harmful agents who are not subject to criminal sanctions. It can do this via familiar social mechanisms such as criticizing, resisting, and excluding dangerous un-convictable offenders. The responsibility system can also function simply to identify harmful groups and identify resisters, and help resisters protest the actions of oppressive groups.

This version of responsibility has a consequentialist bent, but it does not preclude retributive blame—it permits retributive blame only insofar as this attitude facilitates social justice objectives. Maybe Bruce is right that retributive blame is harmful on balance, but this leaves open the possibility that token instances of retributive blame can be justified (in the naturalistic sense of the word), and that non-retributive types of blame can also be justified. Bruce’s view also says nothing about the justifiability of praise, which may or may not be ‘desert based,’ but is certainly not retributive. It seems quite possible to get ride of retributivism without getting rid of responsibility in some other sense—unless something in human psychology prevents this. But if human psychology prevents anything, it would seem to be a thoroughgoing practical rejection of blame, as Strawson argues (1962). It is hard to imagine a world where we don’t blame people for injustice and praise people for resisting. It may be easier to redirect responsibility than extirpating it from human psychology.

Take-charge responsibility: Not necessarily a good thing!

Bruce proposes an alternative to moral (strike-back) responsibility, which he calls ‘take-charge responsibility.’ Take-charge responsibility is “the kind of responsibility we can have for a project, a role, or enterprise; or, to extend it further, the sort of responsibility we can claim for our own decision and our lives” (182). Notably, take-charge responsibility is not morally valenced—it appears to be a kind of (morally neutral) self-efficacy.

The issue I have with non-moral take-charge responsibility is that it is not necessarily a good thing (objectively speaking), although Bruce describes it as a positive good—something to be valued and promoted. Yet it is not hard to imagine scenarios in which take-charge responsibility is antithetical to social justice. Suppose, for instance, that Don is a businessperson as well as a malignant narcissist, and is very efficient at harming others for personal gain. Don has developed an exceptional degree of self-control, cognitive ability, and self-confidence (imagine), and he has also inherited a fortune from his late father. Don is also a white cisgendered male. Don uses his take-charge capacities, together with his wealth and his reputation power, to systematically lie and deceive people, objectify women, profit from illegal business transactions by counter-suing plaintiffs, threatening litigants, settling cases out of court, and making other ‘gentlemen’s agreements’ and seedy backroom deals, to preserve his privilege. Eventually he even obtains a well-regarded public office. In someone like Don, take-charge responsibility is not a valuable capacity—at least, not from the perspective of social justice. It would be much better if Don were lazy, ineffectual, and terrible as carrying out his antisocial plans.

This example is meant to show that take-charge responsibility in and of itself does not facilitate social justice; it is only socially beneficial when it operates in the service of pro-social aims. When combined with a distorted moral psychology, take-charge responsibility is positively harmful. Notably, if we combine take-charge responsibility with moral sensitivity, this dual capacity looks a lot like moral responsibility, in the familiar sense of moral reasons-responsiveness (see Fischer 2006, 2012). Morally reasons-responsive agents have take-charge responsibility (self-control, self-confidence, cognitive ability, etc.) plus moral sensitivity. Agents who lack self-efficacy have motivational deficits, while agents who lack moral sensitivity have moral-recognitional deficits. That is, neither capacity on its own is as valuable as the two combined. Indeed, self-efficacy by itself can be dangerous.

Now, people with moral reasons-responsiveness are also generally taken to be apt targets of praise and blame, inasmuch as praise and blame foster and reinforce this suite of capacities. On consequentialist models like Manual Vargas’ (and perhaps Gregg’s?), responsibility attributions function to enhance the reasons-responsiveness of minimally responsive agents, and this is what justifies these attitudes.

Curiously, it seems as if take-charge responsibility would also need external reinforcements to come into existence and evolve into a durable human capability, since complex human capabilities are not innate—they are shaped by social pressures, inducements, and relationships. The capacity to speak grammatically, for example, does not develop in children who do not engage in conversations with others. Self-efficacy would seem to require similar social supports. What are these social supports? Presumably, some form of non-moral praising and blaming attitudes. Bruce should be committed then, at a minimum, to non-moral praise and blame.

Now, if we think that take-charge responsibility should ideally function in conjunction with moral sensitivity, then we also need to posit moral blame and moral praise, to foster this additional relational capability. The idea that human capabilities require social incentives and disincentives is a given in developmental psychology, so the idea that praise and blame are developmentally useful should be fairly uncontroversial.  If we want to encourage moral sensitivity, then moral praise and blame may also be developmentally useful. This is true not only for children, but also for adults, since we are sensitive to social influences throughout our entire lives.

Shared end, different means

In spite of my objections, I am happy to say that Bruce and I are mostly in agreement! We are both concerned first and foremost with promoting social justice, and we agree that the responsibility system as we know it is deeply unjust. Our only point of disagreement is about the best means of accomplishing our shared goal.  Fortunately, our efforts are largely complementary insofar as they both draw attention, in different ways, to sources of social injustice. I can say the same about everyone who contributed to this symposium. Thank you all for the illuminating discussion!