Table of Contents
Table of Contents
Chapter 1. Moral Responsibility
1.2 Modern Moral Theory
1.3 Moral Accountability and the Second-Personal Stance
1.4 What is an Action?
1.5 Unintended Side-Effects
1.6 Post-Efforts Test
Chapter 2. Legal Responsibility
2.1 What Does it Mean to Be a Person?
2.2 Mens Rea in Criminal Justice
2.4 Hart’s Ascriptivism
2.5 What is a Responsible Action?
Chapter 3. Robert Nozick and Individual Responsibility
3.2 Rawlsian Context
3.3 Nozick’s Moral Theory
3.3.1 Side Constraints
3.4Nozick’s Theory of Property
3.5 Nozick’s Theory of Justice
3.6 Cohen’s Counter-arguments
Bobby Jo McPherson II: Justice as Responsibility: A Defence of Robert Nozick’s Theory
In this paper, I seek to show that one of the primary counterarguments to Robert Nozick’s theory undermines or displaces a necessary conception of individual responsibility, and therefore fails to convince. First, I define and describe the conventional theory of personal responsibility, elaborating particularly in neo-Kantian terms, and give an account of action. Second, I continue to develop a theory of personal responsibility, especially in the legal categories of mens rea and actus reus, and explain how it relates to justice, continuing to do so in a neo-Kantian line of thought and give a detailed account of intention. Finally, I elaborate on Robert Nozick’s political theory, and the objections to it, concluding that they fail to successfully refute the concept of personal responsibility entailed by his theory that justice requires. I conclude this is due to the uniquely human nature of moral accountability, and therefore, the uniquely human nature of justice.
Brian Barry has written a well-received work titled Why Social Justice Matters.1 One chapter he dedicates to arguing against personal responsibility, with the telling title, ‘The Cult of Personal Responsibility.’ Holding that determinism is true, people are purely and entirely products of the environment; therefore, unequal opportunities that exist are the sole cause of an unjust disparity.2 He declares that ‘...if we [at] once took seriously the implications of determinism, we would realize that the assignment of responsibility is a charade.’3 He blames monotheistic religion for promoting the idea of personal responsibility.4 Instead of blaming God for inequality, ‘sin’ is the scapegoat for the social injustice that exists, as Barry sees it. ‘Reeking hypocrisy’ is the claim that any rights, such as welfare rights, must come with responsibility.5
Can we meaningfully talk about justice without the classic conception of personal responsibility — the kind of responsibility expressed by the legal categories of a guilty action (actus reus) and guilty mind (mens rea)?6 Some legal scholars have pointedly argued that mens rea should have no bearing in legal affairs. Instead, in matters of justice, the maxim should be actus facit reum, that is, ‘The action makes the guilt’ and that a crime is nothing more than an action.7 This would be a return to strict liability. These questions depend on the relationship between the actions and intentions of a moral agent, and situations which are, or are not, produced by the agent.8 This paper will argue against a specific kind of argument within the social justice debate. Both direct attacks (like those of G.A. Cohen and Brian Barry) and indirect attacks (such as John Rawls’) displace or undermine the concept of personal responsibility, which requires the volitional and intentional capacity of a moral and rational agent, in order to assign blame. Without a coherent conception of responsibility, claims of violations of justice are themselves incoherent. Arguments about justice predicated on the disjunction between justice and responsibility are, therefore, invalid.
The two theories of justice articulated by Robert Nozick and John Rawls have been labelled formal and substantive, respectively.9 Formal justice gives more weight to the procedure and less weight to the outcome, whereas substantive does the opposite. These approaches treat accountability and blame differently. So, a preliminary account of responsibility and blame is necessary before looking at Nozick’s account of justice and Cohen’s reply in particular.
Though invaluable to this discussion, the debates regarding metaphysical dualism that seem required is outside our narrow scope. Nor can we assess the retributive notion of justice which seems to me my argument is predicated upon, nor will this paper assess the question of whether free will exists, in fact. Furthermore, our scope is limited to the topic of distributive justice, in its Rawlsian and Nozickian context (actually, a specific argument within that debate, instead of justice itself).
We will be leaving out other applications of justice, such as intergenerational justice or environmental justice.
The literature gives three primary ways Nozick’s entitlement theory, as shown through the Wilt Chamberlain example, is countered. (1) Asserting that people are not entitled to their natural assets. (2) That ownership does not entail transfer rights (or does rarely). And (3) that self-ownership,10 as expressed in property, does entail transfer rights, but this is only true until it leads to gross inequalities, which are plainly unacceptable ipso facto. The first counterargument is outside our scope, and the second, if correct, would not falsify personal responsibility which Nozick’s position assumes, namely, that justice entails action and intent as expressions of the will of a morally competent person, which is a minimum threshold in matters of answerability. It would simply mean, at most, that an unjust transfer was made which one has no right to make; a specific act, performed by a specific mind. Therefore, the focus of this paper will be on the third type of argument against Nozick, insofar as personal responsibility addresses Cohen’s counter argument and countertheory.
Justice is always connected to imputability, to use a Kantian term (which he in turn gained from Roman law), and imputability is always connected to the expression of a will in the context of duty, though different theories have articulated this concern differently. Not all theories of an egalitarian persuasion outright reject or undermine the requirement for the responsibility of morally competent agents. Michael Allingham has identified four distinct theories of justice within the ‘deontological liberalism’ camp, with decreasing liberty from Nozick’s, to Steiner-Vallentyne’s, to Dworkin’s, and finally to Rawls’ theory. Rawls alone, of the four, rejects responsibility. However, Rawls’ rejection of responsibility is not unique to him.11
The Boston Review hosted a forum discussing the topic: ‘The philosophy of personal responsibility has ruined criminal justice and economic policy. It’s time to move past blame.’12 This forum included philosophers discussed or referenced in this paper, like T.M. Scanlon, Kristine Korsgaard, and Barbara Fried. As scepticism of personal responsibility increases, it can only create a theory of justice that follows. This is thesis is a partial attempt to defend the classic view of justice based on personal responsibility. It is divided in the following way.
The first chapter gives a preliminary account of moral responsibility as conventionally understood and considers several arguments against it. The second chapter considers legal accountability focusing on the personal nature of that responsibility, thus supplementing the first chapter. I break up what would otherwise be ideal to keep together, discussing action in the first, and intention in the second chapter. Finally, I consider Nozick’s theory, specifically as it is addressed by Cohen, insofar as he rejects personal responsibility with his counter-theory. I conclude that Nozick’s account of justice can provide a coherent account of responsibility, whereas Cohen’s objections to it, of the kind denying personal responsibility, are unsuccessful.13 It is worth noting that this thesis is not an attempt to defend Nozick’s theory as a whole, only the concept of personal responsibility that theories like his presuppose. Therefore, this thesis can be seen as defending Dworkin’s and the Steiner-Vallentyne’s theories as well, insofar as they make room for personal responsibility as not merely a, but the, central component of justice.
Before discussing any conception of moral responsibility, we need to briefly consider the major moral theories vying with each other today. By way of prefatory introduction, a few definitions and distinctions, provided by Jeffrie Murphy and Jules Coleman, are in order.14 First, what we might call positive morality is morality as it is actually conceived and practised in general, what might be better understood as moral intuition. In contrast, Murphy and Coleman propose the term critical morality, or what we might call reflective morality, whereby the intuitions and practices of people have been scrutinised under the process of rational evaluation and criticism. When this reflective morality is articulated in a system and buttressed with defences and justifications for that system, this is what we mean by a moral theory.
1.2 Modern Moral Theory
Utilitarian moral theory is fundamentally about fulfilment of happiness by the promotion of pleasure and avoidance of pain.15 16 Kant consciously argues against this. 16 Though both the Kantian and utilitarian can account for rights, the primary dispute is the ‘why’. Since morality is foundational to politics and law, a difference in substance will lead to serious differences between the political theories based on it.17
Indeed, utilitarian and Kantian accounts of the nature of rights is precisely that sort of difference. As Murphy and Coleman point out, ‘What the utilitarian cannot do.. .is regard rights as having ultimate or primary or fundamental value; only utility.’18 Although it is a caricature to think that utilitarianism holds that the end justifies the means, in this view, rights are only valuable insofar as they are instrumental in promoting the overall welfare of society, not as ends in themselves. Yet, rights are fundamental in the Kantian moral theory; they are not valued contingent upon anything else.
Further, utilitarianism ‘looks primarily’ to maximise ‘desirable future consequences,’ whereas, Kantianism looks ‘primarily’ to ‘constrain the means’ by which those desirable future consequences can be sought.19 In other words, as Nozick puts it, Kantian moral theory is predominantly about the ‘side constraints’ in achieving happiness. This distinction boils down to whether we ‘regard human freedom’ or ‘human happiness’ as central to the essence of morality.20 Thus, the paths diverge with the former focusing on justice as preserving certain non-negotiable rights, the latter promoting (or tending to promote) welfare.
Since this paper takes a neo-Kantian tack, it is helpful to expand on Kant’s ethic, if only briefly. Kantian moral theory is also distinct from ancient views of morality. For example, the Greeks saw the ethical life as the pursuit of virtuous happiness; Kant holds that morality is the pursuit of becoming worthy of happiness.21 It does not follow that the pursuit of happiness and the pursuit of being worthy of happiness cannot meet, however. The pursuit of happiness follows, according to Kant, the law of prudence; the pursuit of becoming worthy, the moral law itself.
Because humans have an equal capacity for rationality (not in degree but in kind), so must all humans be equally deserving and capable of justice. This is because, as Kant writes, ‘[W]hereas freedom is indeed the ratio essendi of the moral law; the moral law is the ratio cognoscendi of freedom.’22 In other words, freedom is the rational ground of morality, whereas the moral law is the rational means of knowing freedom. Moral freedom and moral law are inextricably linked, the one cannot exist without the other. For Kant, the moral law is based on reason, as such, and since man’s only innate right is freedom, injustice is the irrational abuse of another’s freedom. P.F. Strawson and Stephan Darwall develop a neo-Kantian line of thought regarding the nature of human interaction and moral accountability along similar lines, to which we turn to next.
1.3 Moral Accountability and the Second-Personal Stance
P.F. Strawson wrote an influential essay titled ‘Freedom and Resentment’, which sought to provide a plausible account of a free will-determinist compatibilism from a psychological approach. He argues that the ‘reactive attitudes’ of anger and gratitude, resentment and forgiveness, and others, are, perhaps not in individual circumstances justified, but are justified as such.23 That is, even if determinism is true, which he takes to be the case, the reactive attitudes are inescapably human; our nature is so constituted that we cannot not possess and express reactive attitudes, in general. Only in a condition in which free will is believed in may such reactive attitudes ‘seem natural or reasonable or appropriate.. ,’24
1 Brian Barry, Why Social Justice Matters (Cambridge: Polity Press, 2005).
2 It is not clear if Barry would consider the monastic practice of voluntary poverty to be an injustice. It would be hard to see how it could be, but if the monk is also a product of his environment, purely and entirely, then not only is the poverty victimization but the monkhood itself. This would seem an odd, but necessary conclusion.
3 Thomas Patrick Burke, The Concept of Justice: Is Social Justice Just? (London: Bloomsbury Academic, 2011), p. 156.
4 There is much truth to this claim. Jules Coleman and Jeffrie Murphy explain a shift from the ancient concept to a more civilised one of legal responsibility, as they see it. The term mens rea comes from a public sermon by Augustine, though some would say the ideas are not unique to Christianity as traditionally thought, existing in Plato and Aristotle. See: Demetrios Agretelis, ‘“Mens Rea” in Plato and Aristotle’, Issues in Criminology, 1.1, (Fall 1965), 19-33, in Criminal Responsibility <https://www.jstor.org/stable/42912528> [accessed 24 May 2019]. A revival of Roman law played a role in the development, but the ‘more powerful’ influence was Christian canon law. See: Eugene J. Chesney, ‘Concept of Mens Rea in the Criminal Law’, American Institute for Criminal Law and Criminology, 29.5.2, (1939), 627-644, (p. 630), <https://scholarlycommons.law.northwestem.edu/cgi/viewcontent.cgi?article=2828&con text=jclc> [accessed 3 July 2019].
5 Barry, Why Social Justice Matters, p. 147.
6 Garvey argues for the negative conclusion. See: Stephen P. Garvey, ‘Authority, Ignorance, and the Guilty Mind’, SMULaw Review, 67, (2014), 545-575, <https://scholarship.law.corneU.edu/cgi/viewcontent.cgi?artide=2522&context=facpub> [accessed 13 May 2019].
7 Rollin M. Perkins, ‘A Rationale of Mens Rea’, Harvard Law Review, 52.6, (April 1939), 905-928 (p. 905), <https://www.jstor.org/stable/1334184> [accessed 25 May 2019]; Also, see W.D. Ross, the Oxford philosopher, who argued in 1930 that motives never determine whether an act is right.
8 The modern conception of injustice being present without a specific guilty action and/or guilty mind can be traced back at least as far as the Enlightenment when hereditary privileges were deemed unjust, because unfair. Social justice is a continuation of that same concern, as I see it. This is largely supported by Samuel Fleischacker. See: Samuel Fleischacker, A Short History of Distributive Justice (Cambridge, Massachusetts: Harvard University Press, 2005).
9 Interestingly, Rawls has labelled his theory of justice as a form of procedural justice. For a more thorough overview of the term, without any conclusion, see: Otfried Hoffe, Categorical Principles of Law: A Counterpoint to Modernity, trans. by Mark Migotti (University Park, PA: Pennsylvania State University Press, 2002), pp. xx-xxi.
10 Roemer records that it was A. Sen who coined the term ‘self-ownership’ to describe Nozick’s position. See: John E. Roemer, Theories of Distributive Justice (Cambridge, Massachusetts: Harvard University Press, 1996), p. 208. According to Friedman, this is an incorrect description of Nozick’s view, offering a Kantian account based on rational agency. See: Mark D. Friedman, Nozick’s Libertarian Project: An Elaboration and Defense (London: Bloomsbury Academic, 2011).
11 Rawls does not appear to have ever responded directly to Nozick; therefore, it is Cohen that will be directly addressed in chapter three. However, there exists enough similarity in both Rawls’ and Cohen’s theories for our purpose. Both reject the idea of justice existing only as a human means of personal responsibility.
12 Barbara H. Fried, Beyond Blame (2013) <http://bostonreview.net/forum/barbara-fried-beyond-blame-moral-responsibility-philosophy-law> [accessed 11 June 2019].
13 I do not directly address Brian Barry, but this paper does layout a viable outline of how one might respond.
14 Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence, rev. edn (London: Westview Press, 1990).
15 This holds true even for the modified ‘informed preferences’ view. See: Will Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd edn (Oxford: Oxford University Press, 2002), p. 16.
16 It is not likely that Kant was aware of Bentham, according to Hoffe, but he explains that Mendelssohn and Wolff were arguing essentially the same thing. See: Hoffe, Categorical Principles of Law, p. 90.
17 The debate regarding the ‘separation thesis’ between Raz and Alexy notwithstanding.
18 Murphy and Coleman, Philosophy of Law, p. 74.
19 Ibid., p. 71.
21 John Rawls, Lectures on the History of Moral Philosophy, ed. by Barbara Herman (Cambridge, MA: Harvard University Press, 2000), p. 155.
22 Henry E. Allison, ‘Kant’s Practical Justification of Freedom’, in Kant on Practical Justification: Interpretive Essays, ed. by Mark Timmons and Sorin Baiasu (New York, NY: Oxford University Press, 2013), p. 294.
23 Derk Pereboom seems to miss this point. He acknowledges that determinism cannot remove or alter every reactive attitude, such as the more extreme ones, like rage, from a brutal murder of one’s child, but is willing to argue that most, and all normal one’s can be. But this misses the point. He agrees that in such a scenario, it would be ‘psychologically impossible’ to remove such feelings, only the less powerful emotions. But if this is true, then since most of us never have to face such brutality, it would seem that the minor insults and injustices of everyday life that create such reactive attitudes would be easily rejected, before they even came up, if we held determinism as true. But this is Strawson’s point — our daily lives, with daily injuries, cannot exist without such attitudes; it is the rule, not the exception. Pereboom would have it the exception, and not the rule. See: Derk Pereboom, ‘Revising the Reactive Attitudes’, in Free Will and Reactive Attitudes: Perspectives on P.F. Strawson’s Freedom and Resentment, ed. by Michael McKenna and Paul Russell (Ashgate Publishing, 2008; repr. Abingdon, Oxfordshire: Routledge, 2016).
24 P.F. Strawson, Freedom and Resentment and Other Essays, 2nd edn (York: Methuen, 1974; repr. Abingdon, Oxon: Routledge, 2008), (p. 7), <https://books.google.co.uk/books?id=WQR9AgAAQBAJ> [accessed 25 June 2019].