The Unilateral Authority Theory of Punishment

Law and Philosophy  The Author(s). This article is an open access publication 2023 https://doi.org/10.1007/s10982-023-09484-y RICHARD CHILD THE UNILATERAL AUTHORITY THEORY OF PUNISHMENT (Accepted 24 May 2023) ABSTRACT. It is frequently argued that wrongdoers forfeit, through their wrongdoing, their previously held claim rights against being punished. But this is a mistake. Wrongdoers do not forfeit their claim rights against being punished when they violate rights. They forfeit their immunity to having their claim rights against being punished removed. The reason for this, I argue, is that when they violate rights, wrongdoers culpably disregard the authority of right-holders to negotiate the conditions under which it is permissible to interact with them. The effect of this, far from undermining the authority of right-holders, is to transfer authority to right-holders to unilaterally impose the ‘conditions of interaction’ on wrongdoers after the violation. The conditions can be imposed for a diverse range of reasons and can take a variety of forms, including punishment. In this essay I explain and defend this new ‘unilateral authority theory’ of punishment. I. INTRODUCTION To show that punishment is morally permissible it is not enough merely to show that something valuable – crime reduction, retribution, reform of the offender, restitution for the victim, etc. – will result from the punishment. It must be shown that the person who is punished lacks a right against being treated in that way. Non-consequentialists tend to approach this latter task by trying to show that the act of violating another’s rights triggers a significant change in the normative situation of the wrongdoer such that they ultimately RICHARD CHILD lose their previously held right against being punished.1 I believe that this is, broadly speaking, the correct argumentative strategy for establishing the permissibility of punishment. But existing versions of this strategy all suffer from the same flaw: they mischaracterise the precise nature of the change that occurs in the wrongdoer’s normative situation as a result of their wrongdoing. In this essay I propose a new version of this general non-consequentialist strategy for justifying punishment that avoids the flaw in existing accounts. On my view, a wrongdoer does not automatically lose his right against being punished the moment he violates someone else’s rights. Instead, he loses his right against being punished when that right is removed via the exercise of a normative power that is vested in the person whose rights have just been violated (or her representative).2 The normative power that the victim (or her representative) has over the wrongdoer is the power to determine the costs the wrongdoer must bear for interacting with her in a way that violates her rights. And this power, in turn, is derived from the power we all have as right-holders to negotiate with others over what we can call the ‘conditions of interaction’, that is, the conditions that others must satisfy in order to gain permission to interact with us in ways that would, were permission not granted, violate our rights. By culpably violating another’s rights, a wrongdoer disregards the authority of the right-holder to negotiate the conditions of interaction. But far from undermining the authority of the right-holder, the wrongdoer’s disregard for that authority simply frees the right-holder from the reciprocal requirement to respect the wrongdoer’s authority. Negotiation over the conditions of interaction is no longer required, for the victim of the violation can now assume 1 The most obvious examples of such theories are so-called ‘rights forfeiture’ theories of punishment (see, e.g., Christopher Heath Wellman, Rights Forfeiture and Punishment, (Oxford: Oxford University Press, 2017) and Stephen Kershnar, ‘The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing’, Philosophia, 29, (2002): 57–88). But there are many others, including: some versions of retributivism (e.g. Michael Moore, Placing Blame, (Oxford: Oxford University Press, 1997); consent theory (e.g. C.S. Nino, ‘A Consensual Theory of Punishment’, Philosophy and Public Affairs, 12 (4), (1983): 289–306); threat-based theory (e.g. Warren Quinn, ‘The Right to Threaten and the Right to Punish’, Philosophy and Public Affairs, 14 (4), (1985): 327–373); trust-based theory (e.g. David Hoekema, ‘Trust and Obey: Toward a New Theory of Punishment’, Israel Law Review, 25 (3–4), (1991): 332–350); and fairness theory (e.g. Herbert Morris, ‘Persons and Punishment’, The Monist, 52 (4), (1968): 475–501, and George Sher, Desert, (Princeton: Princeton University Press, 1987). Two further approaches that also belong on this list – Daniel McDermott’s moral debt theory and Victor Tadros’s duty view – are the focus of the critical part of my argument below. 2 The significance of this ‘or her representative’ qualification will become apparent later in the essay. For ease of exposition I mostly omit the qualification from the early sections of the text. THE UNILATERAL AUTHORITY THEORY OF PUNISHMENT unilateral authority over setting and imposing these conditions. The costs the victim may impose on the wrongdoer can be imposed for a diverse range of reasons and can take a variety of forms, including (but not limited to) punishment. This is a very brief summary of what I call the ‘unilateral authority’ theory of punishment. In what follows I explain the basic ideas underlying the theory in more detail (Section 4) and respond to some important objections (Section 5). Before that, however, I critically analyse two of the most sophisticated competitor theories from the existing literature and show where they go wrong (Sections 2 and 3). Both of the theories I analyse (Daniel McDermott’s ‘moral debt theory’ of punishment and Victor Tadros’s ‘duty view’) agree with me that the key to justifying punishment lies in working out what we owe to people in virtue of their status as right-holders.3 Where McDermott and Tadros go wrong, however, is in identifying specific goods that wrongdoers must now provide, or specific behaviours they must perform, in order to respond appropriately to their failure to give right-holders what they are owed. As I will go on to argue, these ‘first order’ responses to wrongdoing miss the crucial point that what right holders are owed in general is the ‘second order’ value of respect for their authority. The most appropriate way to respond to a failure to provide someone with this particular second order good is to let them decide, within certain limits, what the appropriate response is.4 The unilateral authority theory agrees with other non-consequentialist approaches that a significant normative change occurs at the moment of a rights violation. But rather than hold that this normative change directly affects the wrongdoer’s claim rights 3 Daniel McDermott, ‘The Permissibility of Punishment’, Law and Ph (...truncated)