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Published online by Cambridge University Press: 13 April 2010
Thomas Hurka derives rights to punish from what I will term the Libertarian Rights Principle, which is “that there is really only one natural right, namely the equal right of all persons to the most extensive liberty compatible with a like liberty for other persons, and that all other natural rights are species or instances of the right to liberty.” These rights to punish, he says, (1) extend only to punishing violators of rights, never to “punishing” the innocent; (2) extend only to punishing for violations pursuant to intentions publicly announced prior to these violations; (3) are subject to the “upper limit qualification” (p. 652) that a permissible punishment for the violation of a right cannot be an act that would violate a more important right (i.e., a punishment that would infringe on a liberty more important than the one infringed upon in the violation); and (4) are subject to the “minimum necessary qualification” (p. 653) that a punishment p for violating a right r is not permissible if a punishment p' that would, were it permitted, violate a less important right than would p, would protect r as effectively as would p.
1 Hurka, Thomas, “Rights and Capital Punishment,” Dialogue, 21, 4 (1982): 647–60;CrossRefGoogle Scholar quotation at p. 649. Citations, unless otherwise indicated, are to this paper. It is abridged in Narveson, Jan, ed., Moral Issues (Toronto: Oxford University Press, 1983), pp. 121–31.Google Scholar
2 In defining extensiveness for sets of liberties that are, in my terms, personliberties, I do not follow Hurka's stipulations for comparisons of individual liberties. I believe, however, that I am true to his intentions when these are projected to sets of liberties for which he does not make them explicit. His intentions so projected include most prominently that a certain person-liberty {L, the liberty to enforce L} is “more extensive” than the person-liberty (L) and includes it as a “proper part,” even though one can exercise the liberty in the latter set without exercising all of the liberties in the former.
Let me now explain Hurka's remarkable, and I think a little strange, idea of the extensiveness of individual liberties. For Hurka, a liberty L is a proper part of a liberty L if and only if “exercising [L] always involves exercising [L], but exercising [L] does not always involve exercising [L]” (pp. 649–50, emphasis added). And he rules that a liberty L is more extensive than a liberty L if (this is only a sufficient condition) L is a proper part of L. For example, “the liberty to buy property in Canada is more extensive than the liberty to buy property in Alberta” (p. 650). Liberty L can be more extensive than L in Hurka's sense, even though having L does not entail having the L, so that L is not more extensive in what I think is a more natural sense. Thus the liberty to buy property somewhere (note well that I have not written “anywhere”) in Canada is more extensive in Hurka's sense than the liberty to buy property in Alberta, since buying property in Alberta is buying property somewhere in Canada. But, depending on the law, one might have the first liberty without having the second. The law could be such that only citizens of a province had the liberty to buy property in it. If that were the law, a citizen of Ontario would have the liberty to buy property in Ontario, and thus somewhere in Canada, but would not have the liberty to buy property in Alberta.
Switching examples to stress the oddity of Hurka's rule for extensiveness, the liberty to live and work in Canada is less extensive in Hurka's sense than the liberty to live in Canada. (Similarly, for the liberty to live as a free person and the liberty to live.) This is because one cannot live and work in Canada without living in Canada, though one can live in Canada without living and working in Canada. For a different sense in which the liberty to live and work in Canada is more extensive than the liberty to live in Canada, I note that having (as distinct from exercising) the liberty to live and work in Canada entails having (as distinct from exercising) the liberty to live in Canada.
The liberty to live and work in Canada relates to the liberty to live in Canada quite differently than does the liberty to live or work in Canada. I note that Hurka, illustrating his ideas, says that “the liberty to move either of one's arms freely is more extensive than the liberty to move one's left arm freely, for it contains it as a proper part” (p. 650). Contrast the liberty to move either of one's arms in the sense that makes Hurka's point, with the liberty to move both of one's arms. I stress “in the sense that makes Hurka's point,” since colloquially the liberty to move either of one's arms is the liberty to move both of one's arms.
3 This implies that sometimes in some places persons can have the right to liberties (for example, to eat enough to live) that not all persons there and then can have. Also implied is that even if it is a necessary condition for everyone's having the right to a liberty that it be logically possible that everyone have and exercise in every which way this liberty, it is not a necessary condition that this be possible in all circumstances.
4 Grounds for these doubts can be gathered from Sobel, Jordan Howard, “Kant's Moral Idealism,” Philosophical Studies, 52 (1987): 277–87.CrossRefGoogle Scholar
5 Kant, Immanuel, Critique of Pure Reason, translated by Smith, Norman Kemp (London: Macmillan, 1958), A316/B373.Google Scholar
6 Sobel, “Kant's Moral Idealism.”
7 Thomas Hurka recently brought it to my attention that he conceded that “as McKerlie points out (McKerlie, Dennis, “Rights and Punishment,” Dialogue, 22 [1983]: 535–38), the formal derivation of the right to punish contained in the article does not make any mention of a right to make threatsCrossRefGoogle Scholar (Hurka, Thomas, “Rights and Punishment: A Reply to McKerlie,” Dialogue, 23 [1984]: 141–48)CrossRefGoogle Scholar. Dennis McKerlie observes that “[d]isturbingly this argument [of the article] would show that we are free to kill [all] rights violators” (McKerlie, “Rights and Punishment,” p. 536).
8 Hurka's reference is to Goldman, Alan H., “The Paradox of Punishment,”Philosophy and Public Affairs, 9 (1979–80): 42–58.Google Scholar
9 For the record, though I believe that liberties are for all persons fully comparable in terms of importance, I think there can be irresolvable differences between persons regarding the relative importance of liberties. I do not believe in interpersonally valid rankings of liberties, and think that differences that resist what Allan Gibbard terms “coordination through normative discussion” provide occasions for political compromise (Gibbard, Allan, Wise Choices, Apt Feelings: A Theory of Normative Judgment [Cambridge, MA: Harvard University Press, 1990]).Google Scholar
10 There are responses from other quarters to these problems with Hurka's upper-limit condition on permissible punishments.
One example: the administration of criminal justice is expensive. On the theory that criminals are “users”of the system, and that users of public services should pay, one might develop a schedule of costs, not only court costs but general administrative costs, to be routinely imposed on convicted criminals, not as punishment, but, as said, as costs for using the system, as costs, properly described, of doing criminal justice. While not necessarily taking the profit out of it, that could cut into its profit and drive out of business all but really skillful thieves. (But why should users of public services—for example, criminals who are apprehended by public police, tried in public courts, and incarcerated in public jails, and truckers who move produce on public roads–pay other than through general taxes imposed on all alike, when, as is generally the case, persons at large benefit more or less equally from these services?)
Another example: it seems that it would be efficient not to leave the business of “making victims of crimes whole” to civil procedures, but routinely to incorporate it in criminal sentencing. Restitution levies, though not properly cast as punishment, could, when added to permissible punishment proper along with user fees (see above), operate further to raise the expected costs of crime and reduce its expected profit, possibly plunging the latter expectation into the red for all but artists of crime.
Hajdin, Cf. Mane, “Criminals as Gamblers: A Modified Theory of Pure Restitution,” Dialogue, 26 (1987): 77–86.CrossRefGoogle Scholar Hajdin subsumes my user fees under an extended notion of restitution levies. I note also that he misses the point of the important problem posed by free-rider crimes (see ibid., p. 84) for libertarianrestitutionists who would limit sentences for crimes to restitution levies, and not punish (properly speaking) at all. For such theorists, the problem posed by these crimes is precisely that these are victimless crimes. The problem is not that the harm done by these crimes is not borne especially by any particular members of society, but that these crimes do no harm at all. That is what provides their perpetrators with a “free,” no-cost-to-anyone ride. Bona fide freerider crimes, by easy implication of their definition, do not produce victims to be made whole. For a last note, Hajdin rightly acknowledges the seriousness of the problem posed for these anti-punishment theorists by murders, especially murders of heirless and socially disengaged people (ibid., p. 85). But he is, I think, overly optimistic regarding the possibility of a solution to this problem in a deconstruction of the crime of murder.
11 I assume, further, as an artificial simplification, agreement among all persons regarding the relative importance of liberties, so that 5 and I measure severity and importance for everyone. I consider the rule reached below to be either a first approximation to general rules that would allow for interpersonal differences in these matters, or (see note 10) as a rule for initial positions in negotiations designed to compromise disagreements regarding issues of relative importance.
12 On a similar note Hurka says that “if no punishments will be effective in deterring violations, [persons] have a duty to impose no punishment at all” (p. 657). Hurka does not, however, distinguish, for separate treatment, cases in which no punishments would be completely effective as deterrents, from the many cases in which, though no punishments would be completely effective and would prevent all further violations, some punishments would be somewhat effective as deterrents.
13 See note 2 above for discussion of Hurka's treatment of the relative extensiveness of rights.
14 The considerations are not fully parallel. On one side are probabilities of eventually certain infringements of the liberties to live of numbers of identified individuals (the probabilities for various numbers summing to one), and on the other are probabilities of rarely if ever known and certain preventions of infringements of the liberties to live of numbers of generally unidentified individuals (these probabilities summing to one). The proper relevance of these differences from a libertarian perspective makes a nice question. See Charles Fried's discussion of arguments for expending more on rescue operations than would be allocated to them by a calculated-to-save-most-lives budget that divided limited resources between rescue operations and safety measures (cf. the last chapter of Fried, Charles, An Anatomy of Values: Problems of Personal and Social Choice [Cambridge, MA: Harvard University Press, 1970]).CrossRefGoogle Scholar
15 Hurka rejects the relevance of preferences to the importance of rights and severities of penalties. This is implicit in his view—de contemptu mundi—that even though “most people would prefer losing several thousand dollars to spending five years in prison… genuine rights concepts [say that]… property rights and rights not to be imprisoned are not ranked [in terms of importance] with respect to each other” (p. 655, n.12).
16 Kant, Critique of Pure Reason, A316/B373.
17 Mackie, J. L., “Retributivism: A Test Case for Ethical Objectivity,” in Philosophy of Law, 3rd ed., edited by Feinberg, J. and Gross, H. (Belmont, CA: Wadsworth, 1986), p. 623.Google Scholar
18 Cf. Husak, Douglas N., “Why Punish the Deserving?” Noûs, 26 (1992): 447–64.CrossRefGoogle Scholar Thanks to Duncan MacIntosh for many helpful comments on this paper.