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I am grateful for the thoughtful responses to my essay. I will focus my reply on three serious disagreements. But before getting to those issues, I want to respond briefly to a few other important observations.
I agree with Erin Kelly that blame plays a very different and far more problematic role in the public sphere than in the private one. This is an important point, but I cannot adequately address it here.
Mike Konczal is right to sound an alarm about harm reduction programs that are indifferent to the distribution of benefits and burdens among individuals. But blame won’t solve that problem; it just introduces a different and, in my view, far more pervasive and severe set of injustices.
I agree with Adriaan Lanni that, given our current criminal justice system, critics might get farther pressing on the disproportionality of punishments to crimes than on whether a given criminal is morally blameworthy to begin with. But after we have picked the low-hanging fruit (drug sentencing, California’s egregious three strikes law), I suspect that the disproportionality argument will not have an easier time of it than the argument against blameworthiness. At any rate, as I’m sure Lanni would agree, we do not have to choose between them.
Contra Paul Bloom’s reading, I didn’t claim that the policies of the past 40 years were caused by “our collective sense that if things go badly for you, you’ve got no one to blame but yourself.” Such a claim would be foolish along many dimensions. What I said (and the word was carefully chosen) was that public acceptance of those policies was “fueled” by that collective sense. I stand by that. Nevertheless, Bloom may be right that I overestimate its efficacy even in that more modest role.
I thank Brian Leiter for his illuminating elaboration of the argument against compatibilism.
Now to points of serious disagreement.
First, several of the commentators assume that doing without blame would require that we do without a code of acceptable conduct, or at least ex post sanctions for violating it. That is not my view, as I hoped would be clear from my discussion of alternative means of social control. When person X kills person Y despite all our importuning against murder, we are not (pace George Sher) relegated to saying, “Oh well, never mind.” Most of the familiar practices that we associate with blame in the public sphere (fines, incarceration, public condemnation, withdrawal of public benefits) can be deployed in service of harm reduction. I take T. M. Scanlon to be making the same point in arguing that we can choose to hold people substantively responsible—meaning, leave them to bear the consequences of their actions—even if we don’t hold them morally responsible.
Common sense answers questions about blame with great confidence but with little moral or empirical warrant.
The disagreement here is not just semantic: giving bad actors what they morally deserve and reducing social harm at a tolerable cost are radically different undertakings, with radically different challenges and measures of success. If your goal is to give people what they morally deserve, the principal challenges are normative: What facts are necessary or sufficient to hold people blameworthy for their actions, and—if we conclude that they are blameworthy—how do we figure out what punishment they deserve? If your goal is harm reduction, then the principal challenges are not normative but empirical: What policies are most effective at reducing harm at a tolerable cost? While the two inquiries sometimes converge on the same policy recommendation (e.g., killing others should presumptively carry serious sanctions), they generally won’t, at least if each side remains true to its principles.
In addition, ideas have consequences, and they are not always the ones their authors intend. Sher, Bloom, and Gideon Rosen would no doubt reject many conventional blaming practices, particularly in the policy sphere. But the backward-looking, judgmental nature of blame and the rhetoric of personal responsibility that underwrites it are not that discriminating.
For all these reasons, if one’s ultimate objective is to make people’s lives go better, I doubt that time spent developing and defending a perfected notion of blame is time well spent.
Second, I am skeptical about claims of moral blameworthiness; I am not a hardcore determinist. Skepticism seems to me the rational response to what we know about the social and biological determinants of human behavior, as well as to compatibilists’ failure to date to give a satisfactory account of the kinds and degrees of control required to hold people morally blameworthy for their actions.
Several commentators suggest that devising such an account can be left to common sense. But common sense is a poor guide in these matters because it cannot disentangle the emotional, psychological, rational, and moral responses that produced it. Bloom’s, Rosen’s and Sher’s common sense tells them that someone is blameworthy, even if he could not have done otherwise, provided that the person’s actions were the result of choice. Choice for Rosen means that the actor “possesses the general capacity to recognize and respond to moral reasons”; for Sher, that she is “anchored in an accurate understanding of the world”; for Bloom that the decision is “the product of conscious deliberation, of mulling over alternatives and weighing options”—unless of course a person’s capacity to deliberate is seriously compromised by factors beyond his control.
This piece of common sense gets us nowhere. It asks us yet again to swallow the indigestible core of compatibilism without offering any cogent reason why we should. If compatibilists are prepared to accept that someone is blameworthy even if she could not have done other than they did, why are they bothering with the (by stipulation) deterministic psychological process by which she reaches that foregone conclusion? And why should it matter whether the antecedent causes of the (by stipulation) determined conduct are “familiar and easy to recognize”?
Rather than confront these foundational problems, real-world compatibilists, as distinct from metaphysical ones, typically push offstage the “could not have done otherwise” half of compatibilism, just as Edwards predicted they would, leaving us to ponder the process of ratiocination unburdened by the problem of determinism. Or they retreat to the instrumental benefits of blaming people whom they are willing to stipulate are not blameworthy.
Assuming we can somehow swallow the indigestible core of compatibilism, common sense is worse than useless in sorting conduct into the blameworthy or the blameless, once we get beyond the obvious cases that everyone agrees on (e.g., Rosen’s “schizophrenic driven by command hallucinations” or Bloom’s unfortunate husband who, thrashing in his sleep, hits his wife in the face). Is someone who swings first and asks questions later “abnormal” (and hence excused) because, for a host of environmental and biological reasons, she has poor impulse control? Or is she “normal” (and hence blameworthy) because we can’t help feeling that if she had only tried harder, she could have thought first and reached the right conclusion, and that her failure to do so was somehow a choice on her part? Is a child abuser an exemplar of blameworthiness because he is “anchored in an accurate understanding of the world”? Or is he an exemplar of blamelessness because only someone deeply disturbed would be so indifferent to the welfare of his own child and so completely unmoved by reasons that we normal folk cannot help but respond to? Should we incline more toward blamelessness if we find out that the child abuser was the victim of severe abuse and neglect himself, because such determinants are familiar and easy to recognize? Common sense answers such questions with great self-confidence but in my view little moral or empirical warrant.
Third, contrary to the assumptions of Scanlon, Bloom, Sher, and Rosen, I’m not inclined to jump ship when confronted with bad actors for whom I might be supposed to have little sympathy. I consider Cheney’s and Bush’s conduct surrounding the Iraq War unacceptable; I would have voted both out of office and would have supported impeachment if I thought it was legally warranted and politically prudent. I also feel all sorts of reactive emotions toward them, including blame, because I’m human and not a computer. But do I think they are morally blameworthy? I’m not even sure what the question is asking, after we have exhausted all the other dimensions of the problem, and no, I wouldn’t adopt different criteria for judging Bush and Cheney than anyone else.
So also with child abusers and drunk drivers. Bloom assumes from my political preferences on other matters that I would be loathe to give up the prerogative to hold such actors morally blameworthy. He is wrong. Yes, our attitudes about the acceptability of such conduct have changed radically over the past few decades, for the good. And yes, public condemnation and punishment of such conduct has played an important role in changing public sentiment and private conduct. But what does this have to do with blame? Bloom’s basic point would stand if, throughout his discussion, he substituted “unacceptable conduct” for “blameworthy conduct.”
I would say the same thing about Christine Korsgaard’s comments, with which I am otherwise substantially in agreement. Yes, communal life requires us to accommodate others’ needs and desires, and the sorts of accommodations demanded of us are embodied in our communal institutions, laws, and norms. But once again, why isn’t it sufficient to say that conduct that violates those demands is unacceptable? What do we gain by describing it as morally blameworthy as well? And what do we lose? Both questions deserve more serious attention than they have gotten to date from the many fans of blame.
Barbara H. Fried, William W. and Gertrude H. Saunders Professor of Law at Stanford Law School, is author of The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement. She is also a member of the board of the McCoy Family Center for Ethics in Society at Stanford University.
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