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Moral Moments

Luck and Punishment

by Joel Marks

As you may have noticed, I have been able to prevail upon my fellow columnist, Socrates, to address a question of mine which he seemed peculiarly qualified to answer. As it happens, Socrates had been sitting on a letter sent to him by a reader of this magazine, which he felt ill-suited to deal with because it concerned another philosopher who was born more than two millennia after he had last walked in the agora. Furthermore, Socrates recognized that the philosopher, Immanuel Kant, and the type of issue in question, were ones I have dealt with often in my own column, so he asked if I’d take it on. Turnabout is fair play, so I have agreed to answer the letter (with apologies to its author). So without further ado...

Dear Socrates,

The journalist Tom Utley has recently written (Daily Telegraph 04/11/2005) about a proposed new British law to punish drivers who cause a death through carelessness with up to five years’ imprisonment.

The journalist noted that he himself had once inadvertently (and carelessly) driven his car straight over a junction, but without causing an accident. He therefore was no differently placed in his actions and motives than a driver who had killed several people.

Now one could argue that the driver who killed others should be punished in order to encourage all other drivers to exercise care. But this offends against the so-called Kantian Principle – that people be always treated as ends, not as means. A deterrent punishment treats the offender as a means, by making an example of him. It is therefore arguably utilitarian. Is there any other way one might claim that it is right to punish someone for carelessness in such cases where very many are occasionally similarly careless, and so perform the same acts, but without any terrible (accidental) consequences?

Yours etc,
Chris James
Llangernyw, Abergele, Wales

Dear Chris,

I love this question. As an avowed Kantian, I share what I take is also your and surely Utley’s intuition that deterrence is not an adequate justification for imprisoning or otherwise harming a person who is otherwise without (sufficient) blame. But would Kant agree that the proposed law is therefore unjust? I am not so sure. First let me clarify the ‘Kantian Principle’, or categorical imperative as it is commonly called. Kant does not, I repeat, does not, rule out treating somebody as a means. His precise formulation is that nobody ever be treated merely as a means. Kant cannot proscribe treating people as means, because that is unavoidable; and since “‘ought’ implies ‘can’”, if one cannot avoid treating people as means at least some of the time, then it cannot be the case that one ought never to do so. For example, you, Chris, were attempting to make use of my esteemed colleague’s wisdom to solve your puzzle, just as you are now implicitly making use of my own paltry wit. But I assure you that neither of us takes offense; on the contrary, Socrates, but for having spent his allotted time answering my question, would have gladly taken on yours; and I feel honored to take up the slack. I’m sure that neither he nor Kant would disagree with my judgment that you have done nothing wrong by using us in this manner. Had you, on the other hand, kept calling us on the telephone and leaving long messages importuning us to reply; or spammed us unceasingly; or hired a sheriff to deliver your question on pain of lawsuit if we declined to answer it etc, then we could rightfully claim that you had overstepped the bounds of proper use and were now treating us merely as means.

In the sort of case that worries you, punishment is to be meted out. We might first ask: When is punishment justified in general? More particularly, is deterrence ever a good reason? It seems to me, analogous to your use of me and Socrates, the answer would be, “Yes, so long as the person being punished is at the same time treated also as an end.” But might there be something about deterrence that would prohibit it outright (as Kant evidently believed, for example, about lying)? I don’t think so. So long as a person is treated fairly, justly and respectfully, why should we think it wrong if her punishment were also used to try to discourage others from similar malfeasant behavior? It is only when the tail wags the dog and deterrence overrides justice etc, that Kantian alarm bells would sound.

This still leaves open the question of whether a person in the sort of case you describe is in fact being treated justly and fairly if his offense is in some sense contingent [ie it was a matter of mere luck whether or not someone was hurt as a result of the careless driving]. Here again we could inquire more generally: Does such contingency rule out guilt? And again I demur. Everything is in some sense contingent – perhaps even in the main. Could not the cold-blooded assassin claim that she is faultless because someone in an almost exactly similar situation has pulled the trigger, yet the gun misfired?

But no, you object: A Kantian cares about intent. The attempted assassin is as guilty as the successful one, and the garden-variety somewhat careless driver who causes a death is as innocent as the one who picks up some milk at the mall and returns home uneventfully. Well, I agree with you. But would you further agree with me that there is a whole range of possibilities, from ‘innocent’ carelessness to culpability? Therefore a jury and judge should have corresponding discretion in such matters – which I gather is Utley’s point.

I shall end with two additional comments. First, it will still be the case that many, indeed most of the worst ‘offenders’ will get off scot free, because they are not caught (sometimes because no accident occurred). But this, again, is just a truth of the contingent world, which no more ought to inhibit the good-faith meting-out of punishment where we can, than the sad truth of overwhelming suffering in the world relieves us of the duty of beneficence where we can. And second, the law, precisely because it metes out punishment, depends upon the most salient evidence – which is probably why it is biased towards actual occurrences such as accidents as indicators of intent or state of mind – whereas “when moral value is being considered, the concern is not with the actions, which are seen, but rather with their inner principles, which are not seen” (beginning of the second section of Kant’s Grounding for the Metaphysics of Morals, tr. James W. Ellington).

Yours sincerely,

Joel.

Joel Marks is Professor of Philosophy at the University of New Haven in West Haven, Connecticut. www.moralmoments.com