Blame Necessary for Law

Barbara Fried’s skeptical incompatibilist reasons as follows: For all we know, our choices are determined by factors over which we have no control. If our choices are determined, we cannot help acting as we do. If we cannot help acting as we do, we are not blameworthy. So for all we know, we are never blameworthy.

Fried’s compatibilist opponent grants the first line but balks at the rest. Everyone agrees that we are only blameworthy if we have some control over our conduct. No one blames a schizophrenic driven by command hallucinations. But there are many sorts of control, some of which are perfectly consistent with determinism. On one view, for example, the main difference between the blameless schizophrenic and a normal adult is that the latter is competent to a significant degree: she possesses the general capacity to recognize and respond to moral reasons, even if she doesn’t always exercise that capacity. And if that’s all it takes to be responsible, then we are often responsible, even if our actions are ultimately determined by factors over which we have no control.

Fried knows the long tradition of compatibilist apologetics, and she is unimpressed. Every version of the view has an “indigestible core”: the idea that we can be blameworthy for doing what we “could not help but do.” Like many writers, Fried views compatibilism as a desperate effort to rationalize our morally dubious impulse to blame in the face of compelling doubts about free will. She urges us to abandon our resistance and to embrace a social order premised on the fact that no one is ever blameworthy for anything.

Let’s be clear. This is not the moderate claim that we should be less vindictive, tempering blame with compassion and with the recognition that there is always more to the story. It is the radical claim that we are all perfectly innocent, morally speaking, in the same sense in which a schizophrenic driven by command hallucinations is innocent. No matter how sane you are, no matter how privileged your circumstances: whatever you do, you cannot help it; and if you cannot help it, it’s not your fault.

I’m not persuaded by Fried’s case for incompatibilism. But suppose she’s right. What would it be like to take this thought to heart? It can sound appealing at first. Instead of fuming at the jerk in the Lexus who has just stolen your parking spot, take a deep breath and tell yourself that he couldn’t help it. This will blunt your anger, and that might be a good thing. We can imagine a world in which everyone has internalized this habit, a world in which everyone instantly excuses everyone. In a world of this sort, when we read on the blogs about a predatory professor who has been harassing his research assistant, we don’t need to know the details. We know instantly that he couldn’t help it. The only appropriate response is compassion for his victim and for him, since he’s a victim too, if only of nature and circumstance. To take Fried’s view to heart would be to smile benignly on all alike—the rapist, the demagogue—lamenting the sin without blaming the sinner.

Fried thinks a world of this sort would be a better world, and it would certainly be better in some ways. The U.S. penal system is a monument to our tendency to demonize wrongdoers beyond all reason: in a world informed by Fried’s incompatibilism, such grotesque excesses would be less likely.

But now follow the argument where it leads. Consider the banker who bundles worthless mortgages and hawks them to unsuspecting clients. Stipulate that he is blameless for Fried’s reasons and ask, can we legitimately punish him for fraud? To punish him is to deprive him of liberty by means of violence or threats of violence, and innocent people have a right against that sort of thing. We forfeit that right when we freely choose to break the law. But on Fried’s view this never happens, since no one ever chooses freely. It’s wrong to punish the schizophrenic, and it’s tempting to explain this with a principle: if someone cannot help acting as she does, then it’s wrong to punish her. This is exactly analogous to Fried’s axiom that it is wrong to blame someone for doing what he “could not help but do.” Her view thus suggests that punishment is never justified.

Fried’s view masquerades as a moderate proposal: acknowledge that we are all morally damaged and we will all blame less and be better for it. But the philosophical argument is a universal acid. It undermines interpersonal blame, which we can probably live without, but it also threatens any justification we might have for the coercive threats that make law possible, and which we cannot live without.