Reviews
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb01490.x |
| Date | 01 January 1977 |
| Published date | 01 January 1977 |
REVIEWS
ON
GUILT, RESPONSIBILITY
AND
PUNISHMENT.
By
ALF
Ross.
[London:
Stevens.
1975,
x
and
183
pp.
f4.1
THIS
book (which first appeared in Danish in 1970), is
a
collection of six
essays, three of which appear in English for the first time. It is not possible
in the space of
a
short review to consider more than
a
few of the issues
raised
by Professor
Ross,
so
I
shall concentrate on what he has to say about
responsibility, punishment and determinism.
In
On
Law
and Justice
Ross
analysed
“X
is
a
valid law”
as
either
a
prediction that
X
will
be
enforced
or
a
demand (directive) that it should be.
This
analysis is followed here for
“
A
is responsible for x
”
which is interpreted
as
being either
a
prediction that
A
will be found guilty
or
a
demand that he
should
be
punished
(p.
22).
If the statement
is
made outside
a
court
(e.g.
by a
solicitor advising
a
client) it will
be
a
prediction; if made inside court by
counsel for the prosecution it will
be
a
directive.
As
a
general analysis this
seems
to
be inadequate.
No
account is given of how
“
A
is responsible for
x
”
is to be understood when said by
a
judge,
for
a
judge
is
not predicting that
A
win
be
punished (though that may
be
predicted from what the judge says)
nor
is
he
demanding the punishment of
A,
he is
ordering
it, which
is
quite
different. If we
are
going to analyse the concept of responsibility by looking
at the usages of sentences like
“A
is
responsible for x” then it
is
surely
necessary to start with more examples than just two.
The
analysis also fails
in
a
more
specific
way. It
is
simply untrue to say
as
Ross
does on p.
24
that
“
convicting sameone
is
thus implicitly demanding that he
be
punished.” It is
quite possible to concede that
A
is indeed responsible for x but that despite
this
he still ought not to
be
punished. Such arguments are accepted every day
when
a
court convicts
a
defendant and then gives him an absolute discharge.
Responsibility
is
a
necessary condition for (just) punishment but it is not
a
sufficient one unless punishment of the guilty is seen
as
an indefeasible duty.
Perhaps Kant did see it this way but very few would follow him
so
far.
Like Kant, Ross defends retribution holding it to be the only adequate
justification of punishment
(p.
61). Prevention is not the justification of punish-
ment but rather its aim (or purpose).
For
this reason
Ross
rejects-as
“
meaningless ”-the common opposition between prevention and retribution:
both doctrines
are
correct answers to different questions. His own definition
of punishment
(p.
36
et
seq.)
is fairly conventional except that he places great
emphasis on the requirement that punishment must
be
an expression of
disapproval.
He
even says that it is
“a
logical impossibility to enforce
a
normative system
. .
. without at the Same time giving expression to dis-
approval
”
(pp. 36-37). The reasons given for this do not seem to
be
particularly
cogent. Disapproval is variously described as feelings, something experienced,
an
“
act of thought,” an attitude
(see
pp. 37-38) and elsewhere as
“
the sanction
of the moral norm
”
(p.
125).
Ross
is
not clear on this point, but on the whole
he seems to prefer the analysis of disapproval
as
an
“
act
of
thought
”
and as
consisting in
“
feelings of disapproval.” He appears
to
regard it
as
a
necessary
truth that these feelings-expressed publicly as censure or reproachshould
accompany the enforcement of
a
norm. This does not look like
a
necessary
truth or even
a
contingent one.
Is
it true that when
a
court
enforces the norm
requiring that
a
contract for the sale of land must be evidenced in writing
then the judges must feel disapproval and express censure? Feelings are much
less important in jurisprudence than Ross supposes.
One of the arguments most frequently brought against traditional conceptions
of responsibility is that they have been discredited by the advance of science.
When this argument is examined more closely two theses--both phiIowphica1-
can usually
be
discerned. The first (incompatibilism)
is
that determination
97
98
THE MODERN LAW REVIEW
[Vol.
40
and responsibility are incompatible; the second is that science has demonstrated
(or in some versions presupposes) that determinism
is
true. Although
Ross
does
not believe that determinism has been shown to be true, his main efforts are
aimed at discrediting incompatibilism. Once this has been done he believes
that people will lose interest in the whole problem of determinism
(pp.
102-
103).
Although ostensibly a compatibilist
Ross
suddenly adopts incompatibilism
with
respect
to one form
of
determinism: “If determinism implies that the
future is exhaustively predictable then determinism
is
indeed incompatible with
morality” (p.
141).
There are good
reasons
(I
am thinking of Heisenberg’s
Principle) for believing that exhaustive predictability
is
not attainable.
Ross
argues the stronger thesis that it is logically impossible or as he says “logi-
cally meaningless” to predict every future event. The argument used, which
derives from Karl Popper and D.
M.
MacKay, is that no observer can predict
his own future actions since any prediction will alter the initial conditions
on which it
is
based and falsify itself. This is an ingenious argument but
I
am not sure that by itself it is enough. It seems to allow the possibility
of
a
deterministic system in which
all
future events are predictable by an
outside
observer
who
is
not part of the system. Perhaps no such completely
external observer is possibls-all observers must interact with the systems
they describe. If not then the freedom claimed seems little more than an
illusion based on necessary ignorance
of
the content of the predictions. If
this type
of
determinism
is
rejected then there is some difficulty in seeing
what kind
is
left.
Ross
writes of
a
“
limited determinism
”
(p.
149)
but does
not say what the limits are. Determinism is an all
or
nothing doctrine and
a
limited determinism
is
probably much the same as no determinism at all.
On the whole this
book
is disappointing. The style is turgid and
the
content
disordered and repetitious. One passage of over a thousand words appears in
both Chapters
2
and
5
(pp.
25-27, 109-112).
Exactly the same note appears
on pages
58
and
159,
while the statement that the opposition between preven-
tion and retribution
is
meaningless appears
m
fewer than four times (pp.
27,
44,
60,
88).
Other examples
could
be
given. There are
a
number of mistakes,
some quite elementary.
The
pro&tion-Ross calls it
a
“
formulation
”-“
X
could have willed
a
”
cannot possibly be called
a
“
logical fallacy
”
(p.
177).
“Meaningless” does not mean the same as “illogical” (pp.
25, 110).
“He
could have shot her
”
dcm not have the same truth-conditions
as
“
he could
shoot her” (p.
166-167).
Lastly it is quite wrong to say that purposeful
actions must
be
premeditated, that eating for its own sake is not purposeful
(p.
40),
and that it
is
meaningless to ask for the aim of an action done out
of duty (p.
53).
PHILIP MILTON.
SOCIAI,
JUSTICE.
By
DAVID
MILLER.
[Clarendon Press
:
Oxford
Uni-
versity Press
1976.
344
pp. and (bibliography and index)
23
pp.
E8.50.1
DR. Miller has given
us
an original and stimulating piece
of
work which
deserves to be widely read. Like any worthwhile study, it raises more questions
than it answers.
The book is divided into three sections.
The
first
examines three principles
of
justice which, it is suggested, have been central to the debate about the
meaning of “justice
”:
to each according to his rights (in the sense
of
established rights such as contractual or property rights), to each according
to his deserts, and
to
each according to his needs.
It
is demonstrated that
these principles are quite distinct and attempts to reconcile them
(e.g.
by
extending the concept of
“
desert
”
to cover both
“
rights
”
and
“
needs
”)
simply obscure the real conflicts that exist. In this section Dr. Miller deals
with arguments that are, for the most part, familiar. but the discussion is
interesting throughout, and many valuable and incisive criticisms
are
made.
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