The Epistemic Challenge to Consequentialism

In PMR, I present the "epistemic challenge to retributivism." I argue that reasonable retributivists cannot have enough confidence in the debatable moral propositions that underlie retributivism to punish particular offenders given their commitment to the values underlying the beyond-a-reasonable-doubt (BARD) standard. 

Does the epistemic challenge apply to every purported justification of punishment? To some extent, yes. Consequentialists believe, for example, that it can be permissible to use someone merely as a means to an end if that end is good enough. How confident should they be in this proposition? I don't know. I think a reasonable consequentialist can be rather confident in it. But it might be hubristic to hold it with near certainty given that at least some of our moral intuitions seem inconsistent with it, and many reasonable people have claimed it is false. 

Nevertheless, I argue that there is an important asymmetry between retributivism and consequentialism. The values underlying BARD mean that it is generally thought far worse to punish someone who ought not be punished than to fail to punish someone who ought to be. The same values which make retributivists hesitant to punish absent solid proof of factual guilt, I suggest, should also make them hesitant to punish absent substantial confidence in moral guilt. I don't claim they need to believe the person warrants punishment beyond a reasonable doubt, but consistency would seem to require a heavy thumb on the scale against punishment. (So it's not that factual error and moral error are necessarily on a par. But they both must be taken into consideration.)

Similar comments could apply to consequentialism depending on the precise sorts of values the consequentialist holds. I'm open to the idea that the sort of epistemic challenge I raise applies to all proposed justifications and might lead some toward punishment abolition. Nevertheless, I argue that the epistemic challenge is weaker when applied to consequentialism because consequentialists are less likely to subscribe to the values typically thought to underlie BARD. They are more willing to use people merely as a means to an end when the end is sufficiently important. They worry both about the harm of making people suffer in prison as well as the harm of allowing victimizations to occur that could have been prevented. By treating the doing and allowing of consequences on more of a par, they will put less of a thumb on the scale against punishment than retributivists will. (Incidentally, the comparison I make here concerns moral risk. There is a very different sort of epistemic challenge to consequentialism concerning empirical facts that I am not discussing, even though it is an important discussion for another occasion.)

Finally, after the jump, I address a question that Asher Steinberg raised in the comments to a prior post.

An excerpt from Steinberg's thoughtful question:

What troubles me, though, about the argument is that you only argue that retributivists and consequentialists should only have these isolated doubts about certain dubious aspects of their positions, but not about their positions generally, which seem as dubious as those limited aspects. Shouldn't retributivists have moral uncertainty about the possibility that consequentialism is right generally, such that failing to punish is wrong in virtue of its causing disvalue? On the other hand, shouldn't consequentialists have moral uncertainty about consequentialism generally and therefore about whether failing to punish is particularly bad, or any worse than retributivists think it is?

For retributivists, I give nine propositions they must believe true in order to punish some particular defendant. It's true that I could have added more. So the nine propositions give us a maximum confidence. The full picture would presumably make it even harder for retributivists. (I do think I hit some of the big ones, though: free will, wrongdoing warrants punishment/suffering in return, proportionality, etc.)

Since the piece isn't focused primarily on consequentialism, the discussion there is even more abbreviated. I don't even purport to list major propositions associated with consequentialism, though again I do talk about some of the biggies: doing/allowing, means/ends. I could, for example, have had a proposition: "All else being equal, some good consequence is better than a less good consequence," though that would attain nearly universal support.

Importantly, however, the project is not meant to be a full-fledged bottom-up analysis of the appropriate credences of each purported justification. I take as a starting point a reasonable retributivist and a reasonable consequentialist. So I grant, at least for the sake of argument, rather high confidence in the major beliefs of each. Still, I argue, at least in the case of retributivists, those relatively high confidences compound in such a way as to create rather low levels of confidence relative to what they would likely demand (if they subscribe to the values that seem to underlie BARD).

Lastly, retributivists who purport to justify punishing some particular offender by some particular amount needn't worry whether consequentialism would also justify that same punishment. It would just be more reassuring, perhaps. I do think retributivists need to worry about failing to punish when there would be better consequences if they did punish, but I don't add such propositions in for the two reasons already given: (1) I'm discussing the maximum confidence in retributivist punishment and these other propositions certainly could have been added to make the confidence lower, and (2) I'm willing to grant that reasonable retributivists will have relatively high confidence in the negation of key consequentialist premises and vice versa. But I'm certainly open to other ways of conducting these analyses, each of which provides somewhat different but still quite valuable information. Also, I have a discussion in the paper about epistemic hybrids in which consequentialists do think about retributivism and vice versa. That portion of the paper may also be relevant to your comment.

Thanks, Asher! (Some of the propositions in the post above get challenged by the respondents, so I'll be returning to them again over the next couple of weeks.)