Alec Walen

This book argues that there are four different justifications that a liberal state can appeal to in order to justify imposing targeted restrictions on the liberty of individuals: (1) deserved punishment, (2) forfeiture of rights, (3) enforceable duties to self-restrict, and (4) lack of accountability. The classic justification for the criminal law—that those who culpably commit serious public wrongs deserve punishment that is proportional to their culpable wrongdoing—should be complemented by a different justification—fair forfeiture of the right not to suffer a serious penalty—that would justify a related but distinct kind of law, which I call penal law. In addition, while punishments and penalties can be used to incapacitate dangerous people, incapacitation cannot be a defining aim of either kind of law. It can be at most a secondary benefit of those practices. Nonetheless, lawbreaking actions can ground forfeiture of the presumption of law abidingness, and as a result, it may then be fair to incapacitate the dangerous, outside of a punitive or penal context, to protect others. This kind of forfeiture can be complemented by the other two bases for incapacitation: enforceable duties to self-restrict and lack of accountability. Each type of justification imposes characteristic limits on the way restrictions can operate. Those committed to respecting the dignity of the individual should be pluralists about what can justify targeted liberty restrictions, but we should be principled pluralists, recognizing and respecting the need for justificatory coherence within each type of justification.

S. Matthew Liao and Christian Barry argue that the patient-centered approach to deontology that I have developed—the restricting claims principle —‘is beset with problems.’ They think that it cannot correctly handle cases in which a potential victim sits in the path of an agent doing what she needs to do for some greater good, or in which a person’s property is used to benefit others and harm her. They argue that cases in which an agent does what would be permissible but acts on a malicious reason show that agent intentions, rather than patientclaims, are fundamental to deontology. And they claim that the RCP presupposes the means principle in a way that shows that it is not really offering anything new. I argue here that all of these charges are mistaken. Doing so allows me to offer important refinements to the RCP, to highlight two common mistakes in reasoning about cases, and to set challenges for agentcentered approaches to deontology.

Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs.

Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call for punishment. Doug Husak, in whose honor this paper is written, rejects quality of will theories of blame as relevant to criminal punishment – what I call ‘criminal blame’. He offers instead a reason-responsive account of blameworthiness, according to which blame applies to wrongful actions chosen by agents who knew that what they were doing was or was likely to be wrong, and who nonetheless acted wrongly because of weakness of will. I agree with Husak about quality of will theories, but I argue that weakness of the will is often exculpating, and that when it is not it is because of normative negligence with regard to the reasons to steel one’s will. Thus, I argue his reason responsive account fails too. I offer instead an account of blame the key idea of which is that criminal blame is normatively appropriate as a way of communicating the importance of self-blame. Self-blame properly responds to normative negligence. Moreover, it comes with the emotion of guilt in which an agent experiences a kind of suffering for her unexcused wrongdoing. Punishment, based on criminal blame, reinforces the importance of guilt for maintaining a community of mutual respect.