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Personhood, Equality, and a Possible Justification for Criminal Punishment

Published online by Cambridge University Press:  20 July 2015

Liat Levanon
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The article examines the relationship between a wrongdoer and his victim. Based on this examination, a justification for criminal punishment is proposed. It is argued that crime violates the a priori equality of constituent boundaries and of infinite human value between the wrongdoer and the victim. Criminal punishment re-equalizes respective boundaries and infinite human value. To develop this argument, the article observes how subject-subject boundaries are essential for the formation of separateness between subjects - separateness which is recognized and acknowledged by them in a cooperative process. The article further discusses the value of boundaries and the significance of their a priori equality in every human relationship. It then shows how crime, which is intrusion of the victim’s boundaries, works to demolish the victim’s self-recognizing separateness and hence to create inequality in the parties’ value. Last, the article demonstrates that only punishment can reset the relationship between the parties and re-equate their (still infinite) human value in the relationship.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 27 , Issue 2 , July 2014 , pp. 439 - 472
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Copyright © Canadian Journal of Law and Jurisprudence 2014

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References

1. The most famous and widely acceptable definition is the Flew-Benn-Hart definition, slightly different variants of which appear in Flew, Anthony, “The Justification of Punishment” (1954) 29 Philosophy 291 CrossRefGoogle Scholar; in Benn, SI, “An Approach to the Problem of Punishment” (1958) 33 Philosophy 331 CrossRefGoogle Scholar; in Hart, HLA, “Prolegomenon to the Principles of Punishment” (1959-60) 60 Proceedings of the Aristotelian Society 1.Google Scholar For a discussion of this definition, see McPherson, Thomas, “Punishment: Definition and Justification” (1967) 28 Analysis 21 CrossRefGoogle Scholar; Scheid, Don E, “Note on Defining ‘Punishment’” (1980) 10 Can J Phil 453 CrossRefGoogle Scholar, and the references there. See also Kleinig, John, Punishment and Desert (The Hague: Martinus Nijhoff, 1973) at ch 2.CrossRefGoogle Scholar

2. A full philosophical account of criminal punishment would address several subordinate issues: What is punishment? Are there different types of punishment? Can the imposition of punishment ever be justified? Is there ever a duty to impose punishment? What forms and amounts of punishment can be legitimately imposed? HLA Hart has famously suggested a distinction between the general justifying aim of a system of punishment and the justification for any particular distribution of punishment. Hart, HLA, Punishment and Responsibility (Oxford: Oxford University Press, 1968) at 1–27.Google Scholar

3. Though not necessarily so. Deontological accounts seek to restore justice; teleological ones seek to realize values because they are good as such, rather than because they were unjustly violated.

4. And see in this regard Derek Parfit’s accounts of Telic and Deontic equality, none of which is consequential in any way: Parfit, Derek, “Equality and Priority” (1997) 10 Ratio 202.CrossRefGoogle Scholar See also Brudner, Alan, Punishment and Freedom: A Liberal Theory of Criminal Justice (Oxford and New York: Oxford University Press, 2009) at 51.CrossRefGoogle Scholar Brudner describes his theory as teleological in one sense and deontological in another, but not consequentialist.

5. Since the proposed justification for punishment relies on a right for equality that has been violated, reestablishment of equality through the imposition of punishment cannot be understood as a consequence in the philosophical sense. Reestablishment of equality is the fulfilment of a universal duty. In the same manner, retributivisim cannot be understood as a consequential doctrine even though it does require some contingent or otherwise independent effects such as suffering and reestablishment of a moral balance.

6. For a review, see Zeibert, Leo, Punishment and Retribution (Aldershot: Ashgate, 2006) especially at ch 4.Google Scholar See also Cottingham, John, “Varieties of Retribution” (1979) 29 Phil Quarterly 238.CrossRefGoogle Scholar One seminal work that I do not analyze here is S, Michael Moore’s account in Placing Blame: A Theory of Criminal Law (New York: Oxford University Press, 2010)Google Scholar at Part I, s III. For a discussion of Moore’s theory see, e.g., Dolinko, David, “Some Thoughts about Retributivism” (1991) 101 Ethics 537 at 555-59.CrossRefGoogle Scholar Another important work is Hampton, Jean, “The Moral Education Theory of Punishment” (1984) 13 Phil & Pub Affairs 208.Google Scholar

7. Kant, Immanuel, The Metaphysics of Morals, ed by Gregor, Mary with Introduction by Sullivan, Roger J (Cambridge: Cambridge University Press, 1996).CrossRefGoogle Scholar

8. Ripstein, Arthur, Equality, Responsibility, and the Law (Cambridge: Cambridge University Press, 1999).Google Scholar

9. Brudner, supra note 4.

10. Kant, Immanuel, Metaphysical Elements of Justice: part 1 of the Metaphysics of Morals, 2d ed by Ladd, John (Indianapolis: Hackett, 1999).Google Scholar A useful collection of Kant’s comments on punishment can be found in Murphy, Jeffrie G, “Does Kant Have a Theory of Punishment?” (1987) 87 Colum L Rev 509 at 513-16.CrossRefGoogle Scholar

11. Kant, supra note 10 at para 331.

12. Ibid.

13. Ibid at para 334.

14. Ibid at para 331.

15. See especially Kant’s discussion of theft, ibid at para 333.

16. The reference here is both to the justification of the institution of punishment and to the justification of the distribution of punishment. Hart’s distinction between the questions (supra note 1) was not made by Kant, and it is significant mainly for theories that combine deontological and consequential insights.

17. Kant, supra note 10 at para 332.

18. Ripstein, supra note 8; Ripstein, Arthur, “Self-Defense and Equal Protection” (1995-1996) 57 U Pitt L Rev 685 Google Scholar (see especially the reference to Rawls at 689). [Ripstein, “Self-Defense”].

19. Ripstein, supra note 8 at 2; Ripstein, “Self-Defense”, supra note 18 at 689 (“On this Kantian view, reasonableness is tied with the idea of equality. The root idea is that reasonableness standard provides a like liberty for all compatible with a fundamental interest in the security of those things that are essential to protecting and exercising one’s capacity for freedom”).

20. Ripstein, supra note 8 at 10.

21. See ibid at 158-59.

22. Ibid at 161.

23. Ibid at 162.

24. Brudner, supra note 4 at 43.

25. Possibly, Ripstein analyzes the wrongdoer’s challenge as a challenge against the actuality of the rightful condition. The wrongdoer turns reality into one in which there is no rightful condition. Can punishment meet this challenge? Wrongdoing has three aspects. First, it is a right-violation and so it changes the reality of the rightful condition. In addition, it involves two claims, namely (1) that crime pays; and (2) that there is no obligation to maintain a right-ful condition. These aspects of wrongdoing are independent from one another. Demonstrating that crime does not pay cannot undo the fact that in reality, rights were violated. The rightful condition can only be maintained from now on through deterrence, education, etc., which would effectively prevent further violations (i.e., on consequential grounds that go beyond the wrongdoer and his own wrongdoing). And as we saw, demonstrating that crime does not pay also leaves untouched the normative claim that there should be no rightful condition. If this is so, then Ripstein’s suggestive account should seek support outside the Kantian presumptions.

26. Brudner, supra note 4.

27. Ibid at 14. For the form of the dialogical community as a political community see pages 306-07.

28. Ibid.

29. Ibid at 37.

30. Ibid at 39-40.

31. See Brudner’s discussion of compensation and its effects, ibid at 37.

32. Ibid at 39-40.

33. Ibid at 47.

34. Ibid.

35. In brief, it could be argued against such a move that it turns the justification for the state’s exclusive authority to impose punishment into a contingent one, relying on the fact that the state is the fittest one for the job. I am not sure that this is so. Like other deontological accounts, my proposed account assumes that the state has a duty to maintain a rightful condition (and thus to vindicate equality between persons). The fact that I do not rely on any threat to the state to justify punishment does not detract from this duty.

36. Tadros, Victor, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar

37. This view has its source in Kant’s idea of freedom as the only Right. This is Brudner’s position (Brudner, supra note 4).

38. A comment by Meir Dan Cohen, who took a somewhat similar approach to explain responsibility, may fit my aims: “The response is not a solution to, but rather an evasion of, the problems endemic to the free will paradigm. My aim is to provide an alternative unitary account, in light of which we can make sense of much responsibility-talk without encountering the problems presented by the voluntarist perspective.” Dan-Cohen, Meir, “Responsibility and the Boundaries of the Self” (1992) 105 Harv L Rev 959 at 960.CrossRefGoogle Scholar

39. I do not discuss the issue of offences against property here. There may be various arguments in favour and against their criminalisation. However, it is noteworthy that an account of crime as intrusion of personal boundaries does not necessarily exclude criminalisation of attacks over property. Arguably, property is within the realm of personal boundaries. See ibid.

40. Liberal separateness is sometimes controversially radical. See, e.g., Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974) at 30–33 Google Scholar; Sandel, Michael, Liberalism and the Limits of Justice, 2d ed (New York: Cambridge University Press, 1998) at 51–53 CrossRefGoogle Scholar; Taylor, Charles, Sources of the Self: The Making of a Modern Identity (Cambridge: Cambridge University Press, 1989) at 5.Google Scholar Yet Taylor notes that our most basic moral reactions presume the existence of ‘others’, and that “[c]ulture and upbringing may help to define the boundaries of the relevant ‘others’, but they don’t seem to create the basic reaction itself”. Taylor further notes that “our moral reactions … have two facets, as it were. On one side, they are almost like instincts…; on the other, they seem to involve claims, implicit or explicit, about the nature and status of human beings. From this second side, a moral reaction is an assent to, an affirmation of, a given ontology of the human” (ibid). Feminist literature has been critical of normative assumptions that are allegedly bundled in this ontology. See West, Robin, “Jurisprudence and Gender” (1988) 55 U Chicago L Rev 1 at 5CrossRefGoogle Scholar (“According to liberal legalism, the inevitability of the individual’s material separation from the ‘other’, entails, first and foremost, an existential state of highly desirable and much valued freedom: because the individual is separate from the other, he is free from the other”).

41. See Sartre, Jean Paul, Being and Nothingness, translated by Barnes, Hazel E (New York: Washington Square Press, 1993).Google Scholar While I draw here on some of Sartre’s ideas, I do not wish to accept his moral theory and his notion of freedom. For a similar discussion of self-identity and criminal responsibility see Dan-Cohen, supra note 38.

42. This premise goes a long way back, but see recently Rawls, John, A Theory of Justice (Oxford: Clarendon Press, 1972) at 504–05.Google Scholar

43. Compare with Brudner’s more detailed analysis of boundaries and their relation to rights (supra note 4 at 36-37).

44. See Scanlon, TM, What We Owe to Each Other (Cambridge: Harvard University Press, 1998) at 95–100 and especially at 96.Google Scholar My account of boundaries also accords with a stricter Moorian account of value. See Moore, GE, Principia Ethica (Cambridge: Cambridge University Press, 1903) at s 13.Google Scholar

45. The two senses of respect, namely non-intrusion and cooperation in constitution of personal identity, bear some resemblance to many distinctions offered in the literature between ‘negative liberty’ and ‘positive liberty’ (See Berlin, Isaiah, ‘Two Concepts of Liberty’ in Hardy, Henry, ed, Liberty (Oxford: Oxford University Press, 2002) at 169)CrossRefGoogle Scholar; or between ‘formal agency’ and ‘real autonomy’ (Brudner, supra note 4). For Brudner, for example, real autonomy is different from formal agency in that “the particular agent is not a ghostly self inhabiting a natural body independent of it; rather it is a generic capacity for acting purposively that is individuated in a body moulded to its purpose and executing its self-authored ends.” (Brudner, supra note 4 at 299). In my proposed account, the person is a collection of authentic attributes constituted by equal socio-moral boundaries. Thus, boundaries are valuable as constituents of humanity authenticated, and they are protected as such.

46. Reasons to avoid intrusion and reasons to acknowledge in a broader sense are not equivalent. There is a duty not to intrude, and there is no duty to acknowledge in other ways. Non-intrusion constitutes the substrate upon which self-identity develops; and it is also a form of acknowledgement. Other forms of acknowledgment are less fundamental. However, for our purposes it is important that both types of reasons exist and accordingly, boundaries are valuable in these two senses.

47. Dan-Cohen, supra note 38 at 966.

48. Ibid at 967-68, referring to Frankfurt, Harry G, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar; Sartre, supra note 41; Merleau-Ponty, M, Phenomenology of Perception, translated by Smith, Colin (London: Routledge, 2002)Google Scholar; Goffman, Erving, Encounters: Two Studies in the Sociology of Interaction (Indianapolis: Bobbs-Merrill, 1961).Google Scholar

49. For some interesting comments on identification and reflection see Velleman, J David, ‘Identification and Identity’ in Buss, Sarah & Overton, Lee, eds, Contours of Agency: Essays on Themes from Harry Frankfurt (Cambridge: MIT Press, 2002) at 91.Google Scholar

50. Dan-Cohen, supra note 38 at 968.

51. All of this is not to say that our boundaries are the only valuable feature we hold, or even the only infinitely valuable feature that we hold. We can, for example, think that our intellect (capacity and capability for theoretical reasoning) is constitutive of our personhood and valuable as such; and further that each person consists of an infinite number of intellectual instances or incidents. This too would lead us to conclude that each person is of infinite value. However, this premise would not lead to any conclusions regarding equal claims against one another, at least not directly. Boundaries are unique as they involve claims against others. Some contingent properties may also be valuable; however, value of contingent properties (properties that are not essential for personhood) cannot underlie an argument from equality of the type I would like to advance here.

52. Infinity is a difficult concept that has been discussed in philosophy and mathematics for centuries. The literature is vast, but one insightful example is Oppy, Graham, Philosophical Perspectives on Infinity (New York: Cambridge University Press, 2006).CrossRefGoogle Scholar

53. For an accessible explanation of Cantor’s set theory see Dauben, Joseph Warren, Georg Cantor: His Metaphysics and Philosophy of the Infinite (Princeton: Princeton University Press, 1990).Google Scholar

54. And the mere pursuit of some ends is not valuable. See Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 380–81.Google Scholar

55. Nevertheless, claims from equality of human value often coincide with claims for the good. This is so because of the close connection between the concept of personhood and the concept of the good (for example, in classical liberal theory personal autonomy is often regarded both as an ultimate good and as a constituent of personhood). See, e.g., Taylor, supra note 40 at 14-15 (‘To understand our moral world we have to see not only what ideas and pictures underlie our sense of respect for others but also those which underpin our notions of a full life…. [T]hese are not two quite separate orders of ideas. There is a substantial overlap or, rather, a complex relation in which some of the same basic notions reappear in a new way’).

56. Autonomy has been interpreted differently by different authors, but the above characteristic seems to be consensual. For different interpretations of autonomy see Raz, supra note 54; Feinberg, Joel, Harm to Self: The Moral Limits of the Criminal Law, vol 3 (Oxford: Oxford University Press, 1986) at 28–51 and at 47Google Scholar; Dworkin, Gerald, “The Concept of Autonomy” in Christman, John, ed, The Inner Citadel: Essays on Individual Autonomy (New York: Oxford University Press, 1989) at 54 Google Scholar; Dripps, Donald, “For a Negative, Normative Model of Consent, with a Comment on Preference-Skepticism” (1996) 2 Legal Theory 113 CrossRefGoogle Scholar; Clement, Grace, Care, Autonomy and Justice: Feminism and the Ethics of Care (Boulder: Westview Press, 1996).Google Scholar

57. See further discussion in subsection (IV)(3).

58. See further discussion in subsection (IV)(4).

59. It is indeed possible that Wrongdoer’s prospect of a good life is also reduced by the intrusion, for example because Wrongdoer is injured while committing the wrong. Yet this reduction is irrelevant for evaluation of equality between the parties. As explained above, the principle of equality is a contingencies-neutralizing principle. It requires neutralizing contingencies affecting equality between persons. In the case of injured Wrongdoer, the injury is not a contingency. It is attributable to Wrongdoer as a product of a blameworthy act of will. Accordingly, it should be ignored. See further discussion in section (VI).

60. The holder of an entitlement protected by a property rule determines the price of the entitlement. See Calabresi, Guido & Melamed, A Douglas, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089 at 1092.CrossRefGoogle Scholar

61. It is not clear that this is true; it is clearly untrue in cases of homicide. However, it may be assumed that it is largely true for purposes of this discussion.

62. This does not mean that the attack is legitimate provided that Wrongdoer is willing to a symmetrical downgrade. First, because she still forces the ‘symmetrical’ downgrade, therefore the downgrade cannot be regarded fully symmetrical. Second, because it still detracts from Victim’s (and Wrongdoer’s) minimal boundaries.

63. Analytically, this last inequality can be described as having two complementary aspects: first, respective inequality of bodily (or other) scope; second, respective inequality of the scope of the will: it was Wrongdoer who chose to change the respective boundaries and this fundamental choice was imposed on victim.

64. Scanlon, supra note 44 at 272.

65. To be sure, it is indeed possible that the moment Victim’s boundaries are at least partly extended once again, for example, following the imposition of punishment, Wrongdoer will have a special obligation to respect them in the broader sense (allowing authentication). But until then, the decrease in the magnitude of Victim’s infinite value means that Wrongdoer has fewer reasons to respect Victim in the above-mentioned broader sense than Victim’s respective reasons.

66. This argument is similar to Brudner’s more far-reaching claim that a violation of right signifies not only a denial of the agent’s rights, but an overall denial of the possibility of rights. See Brudner, supra note 4 at 40.

67. Calabresi and Melamed, supra note 60 at 1125.

68. This is implied also in Avihay Dorfman’s Hegelian insight that property rules reflect the duty to treat others with respectful recognition. See Dorfman, Avihay, “The Society of Property” (2012) 62 UTLJ 563.CrossRefGoogle Scholar

69. For a similar, but not identical account, see Sadurski, Wojciech, Giving Desert its Due: Social Justice and Legal Theory (Holland: Reidel, 1985) at 104–05.CrossRefGoogle Scholar

70. Clearly, unequal application of the rules would change the rules, with all the relevant ramifications that this may have.

71. To be sure, she might not become less expressive; but then her expressions of separateness would not be true, since they would not rely on any objective reality of separateness. In the absence of real separateness, there are fewer reasons to cooperate with Wrongdoer’s (futile) self-recognition processes.

72. For a more extensive discussion of Victim’s boundaries, see Lex Talionis in subsection (IV)(6).

73. Such presumptions underlie Hegelian claims that punishment is an act of respect towards the wrongdoer.

74. Brudner, who describes the criminal conduct as intrusion of the realm of formal agency, moves away from the concept of formal agency to a concept of real autonomy in order to explain the amount of punishment. See, e.g., Brudner, supra note 4 at 10, 55-56.

75. For the relation between rights and well-being see Tadros, supra note 36 at 86.

76. Dan-Cohen, supra note 38 at 967.

77. When Wrongdoer rapes Victim he obviously presupposes that Victim is sociologically separate from him; but sociological separateness is not full separateness which has a further moral dimension. Knowing that Victim has a will but treating this will as insignificant is, perhaps, like climbing over a neighbour’s fence: it does not make the fence disappear, but it makes the separation between the actor and the neighbour less sound. Furthermore, the sociological separateness is itself undermined by the act of rape. Finding ways to disregard Victim’s will is, perhaps, like leaning ladders on a neighbour’s fence. While still there, the fence is less of a fence when it has ladders leaning all over it.

78. These may have something to do with the importance of sexuality as a component of the Self: the same way we cannot conceive of a person without a body, we find it difficult to think of an entirely sexless (and hence also gender-free) person.

79. Compare with Sandel’s illuminating description of the self as a subject of possession, supra note 40 at 54-57.

80. Kant describes the subject’s possession of things in terms of other people’s obligation to refrain from using the things possessed by the subject. It is interesting that when describing this relation of possession, he also resorts to spatial metaphors, referring to the joining of the Will of the subject with the object (though he clarifies that these are concepts of reason rather than any actual physical relations). See Kant, supra note 10 at para 254.

81. Measuring inequality is usually not simple, as equality is a complex and multifaceted notion. See Temkin, Larry S, Inequality (New York: Oxford University Press, 1993)Google Scholar, especially his proposed measurement on pages 147-50. I do not discuss here general equality, but equality in one relatively simple respect. Yet this too requires a detailed procedure.

82. von Hirsch, Andrew, “Proportionality in the Philosophy of Punishment” (1992) 16 Crime and Justice 55 at 61.CrossRefGoogle Scholar

83. Kant suggests that natural punishment should not be taken into account by legislatures (supra note 10 at para 331).

84. Punishment is imposed on behalf of Victim’s right for equality. Were Victim to have had the authority to punish, he would have been justified carrying out the punishment by himself. Even though punishment is imposed by the state, it is normatively attributable to Victim and so it affects the relationship between Wrongdoer and Victim.

85. Compare with Tadros’ argument regarding the duty to carry a burden of general deterrence (Tadros, supra note 36).

86. Dan-Cohen, supra note 38.

87. Criminal Code, RSC 1985, c C-46 s 88.

88. Criminal Code, RSC 1985, c C-46 s 249.

89. Criminal Code, RSC 1985, c C-46 s 83.02.

90. Criminal Code, RSC 1985, c C-46 s 83.18.

91. See von Hirsch, Andrew, “Extending the Harm Principle: ‘Remote’ Harms and Fair Imputation” in Simester, AP & Smith, ATH, eds, Harm and Culpability (Oxford: Oxford University Press, 1996) at 259.CrossRefGoogle Scholar

92. Criminal Code RSC 1985, c C-46 s 46.

93. Criminal Code RSC 1985, c C-46 s 70.

94. Criminal Code RSC 1985, c C-46 ss 118-49.

95. Income Tax Act RSC 1985, c 1 (5th Supp) s 238.

96. Offences according to Part 8 of the Canada Shipping Act, 2001, SC 2001, c 26 ss 165-84; Some of these offences, which may be characterized as “non-attacks” consisting of non-de-liberate conduct (for example, those carrying absolute liability), will be discussed in the next subsection.

97. For this reason, a person who profits from his neighbour’s landscaping is not required to share his profits with his neighbour. Had the state demanded that he would, this would have transgressed his boundaries. The question whether or not such a demand is legitimate is one of distributive justice and the limits of state action. I shall not discuss it at length here. A possible route for solving it would be seeking areas of overlap between (authenticated) personhood and the capability to pursue the good. Only where there is such overlap will redistribution be legitimate.

98. Morris, Herbert, “Persons and Punishment” (1968) 52 The Monist 475.CrossRefGoogle Scholar

99. Ibid at 477. Various authors have attempted developing the idea of unfair advantage introduced by Morris. See Finnis, John, “The Restoration of Retributivism” (1972) 32 Analysis 131 CrossRefGoogle Scholar; Sher, George, Desert (Princeton: Princeton University Press, 1987) at 69–90 Google ScholarPubMed; Burgh, Richard, “Do the Guilty Deserve Punishment?” (1982) 79 J Philosophy 193 CrossRefGoogle Scholar; Davis, Michael, “Criminal Desert and Unfair Advantage: What’s the Connection?” (1993) 12 Law & Phil 133.CrossRefGoogle Scholar

100. Duff, RA, Trials and Punishments (New York: Cambridge University Press, 1986) at 211–17. For other criticisms see Dolinko, supra note 6.Google Scholar

101. Criminal Code, RSC 1985, c C-46 s 434.

102. Criminal Code, RSC 1985, c C-46 ss 220-21.

103. See Fletcher, George P’s discussion in “The Theory of Criminal Negligence: A Comparative Analysis” (1971) 119 U Pa L Rev 401.CrossRefGoogle Scholar

104. Criminal Code, RSC 1985, c C-46 ss 220-21.

105. Intrusion does not necessarily imply blameworthiness. There can be a justified intrusion.

106. Compare with Brudner’s discussion of mens rea, supra note 4, especially at 75-81.

107. Parfit, supra note 4 at 211, Temkin, supra note 81 at 247-48.

108. See, e.g., Parfit, supra note 4 at 210-11, 218-20; Mason, Andrew, “Egalitarianism and the Levelling Down Objection” (2001) 61 Analysis 246 CrossRefGoogle Scholar; Cristiano, Thomas & Braynen, Will, “Inequality, Injustice, and Levelling Down” (2008) 21 Ratio 392 CrossRefGoogle Scholar; Holtug, Nils, “Egalitarianism and the Levelling Down Objection” (1998) 58 Analysis 166.CrossRefGoogle Scholar

109. Parfit, supra note 4. Thus where the rich refuses to give a dime to her poor neighbor, it seems less objectionable to take the dime from her altogether to reduce the inequality between the two. The rich is aware of the inequality and does nothing to redress it, therefore becoming in some weak way (through omission) responsible for the inequality. The inequality becomes unjust.

110. To be sure, so analyzed punishment most accords with what Parfit calls the Priority View (or, in Temkin’s terminology, Extended Humanitarianism); but it also accords with my egalitarian assumptions.

111. Temkin, supra note 81 at 13; Nagel, Thomas, Equality and Partiality (New York: Oxford University Press, 1991) at 71 Google Scholar (discussing the position that ‘what seems to be bad is not that people should be unequal in advantages or disadvantages generally, but that they should be unequal in the advantages or disadvantages for which they are not responsible’).

112. See Ripstein, supra note 8. Morris (supra note 98) also shares at least the first presumption.

113. See Brudner, supra note 4 at 39-40, 47.

114. Brudner, supra note 4 at 37.

115. Brudner writes: “Neither compensation nor punitive damages suffices to invalidate the right-denying claim expressed by an intentional interference. Compensation adequately realizes P’s right to choose his ends against S’s mistaken claim that P is not a right bearer; but it fails to address the wider implication of S’s intentional interference, namely, that (since P is an agent) there can be valid claims to act outside the bounds of mutual respect for agency. Moreover, to require only that S compensate P and that S disgorge his gain from the wrongful transaction merely restores S to the status quo ante where he enjoyed a right to mutually respectful liberty; whereas his claim is just that the status quo ante is invalid.” Brudner, supra note 4 at 46.

116. Describing the relation between the community and agents, Brudner writes: “a satisfying confirmation of self-worth can issue only from a relation of mutual recognition between free and equal persons. The same reasoning applies to the relationship between a political community and an individual agent.” Brudner, supra note 4 at 306. So it is not only the community that requires the agent’s confirmation; the agent requires the community’s confirmation of its agency and worth. Without it, the agent is not constituted as a real, actual agent as the principle of non-agency remains to stand.

117. See Brudner’s discussion, supra note 4 at 306-07.