Punishment and duties

Notes for Tuesday, November 11, 2014

Main ideas

Tadros is attempting to explain why deterrence is a legitimate aim of punishment. This is a question for him because, he believes, it is generally wrong to harm one person to benefit another. Since deterrence involves punishing one person in order to prevent another one from being victimized by a crime, it seems to run afoul of that general prohibition.

Tadros’s answer is that criminals have duties to protect people who might be victims of crimes. That is, victims have special duties that innocent people do not by virtue of having committed crimes. The way they fulfill their duty to protect potential victims of crimes is by being punished, thereby deterring other would-be criminals. Society is justified in punishing for the sake of deterrence because it is justified in enforcing the criminals’ duties, much as it would be justified in enforcing their duties to respect property or their duties to perform their contractual obligations.

The double hit man case

Tadros argues for his conclusion by giving an example. The example gives a case in which, he believes, it is obvious that it is permissible to harm one person for the sake of another. Since the example is like punishment, he believes, that is enough to show that punishment for the sake of deterrence is permissible.

Here is the example.

“Evelyn hires a hit man to kill Wayne. Fred has also hired a hit man to kill Wayne. Both hit men arrive at the same time. Because of where they are standing, Wayne can only use Fred as a shield against Evelyn’s hit man and Evelyn as a shield against Fred’s hit man. He manages to do that, resulting in the deaths of Evelyn and Fred.” (2011, 274)

The idea is that Fred has a duty to prevent the hit man he hired from killing Wayne, even if it means stepping in front of him to take the bullet himself. Evelyn has a similar duty. Wayne is allowed to enforce those duties by pulling Fred in front of Fred’s hit man and Evelyn in front of Evelyn’s hit man.

So far, what has been asserted is that Wayne can use each of them to prevent a harm from happening that they are each responsible for: Fred can be harmed to block the harm Fred is responsible for causing and Evelyn can be harmed to block the harm that Evelyn is responsible for causing. That is not like deterrence. Deterrence involves harming one person in order to prevent someone else from doing something harmful. So there has to be more to the story; Tadros obliges.

Wayne is also permitted to enforce Fred and Evelyn’s duties by pulling each one in front of the other’s hit man. So Wayne can pull Fred in front of Evelyn’s hit man and Evelyn in front of Fred’s hit man.

What that shows, according to Tadros, is that it is acceptable to harm one person (Fred or Evelyn) for the sake of another (Wayne). Furthermore, it is permissible to use the guilty person to prevent a harm that the guilty person is not responsible for causing.

That seems to be like punishment for the sake of deterrence. We harm a guilty person to prevent someone else from doing something bad.


We had some questions. Sydney asked why this wasn’t all covered by self-defense: why is it necessary to show that the guilty person has a duty to protect potential victims of crime and all the rest? I think the idea is that Wayne would not be permitted to use someone who is innocent as a shield. He could not grab innocent Stephen to block the bullets from either Fred or Evelyn’s hit man; he is only allowed to use either Fred or Evelyn (or some other guilty person, I guess).

Hobbes, of course, would disagree. Most of the rest of us probably aren’t sure exactly what we think. These sorts of cases do not come up very often, after all.

Dani asked what would happen if Fred had only hired his hit man to beat up Wayne. Her idea was that Wayne would not be permitted to use Fred to block the bullets from Evelyn’s hit man but, at most, to block any punches that Evelyn’s hit man might throw. I guess that’s right: Wayne is out of luck and is going to die when Evelyn’s hit man shoots him. Or he’s going to be bad and use Fred anyway.

You can imagine Wayne working through exactly what he is permitted to do while being assailed by two hit men while the people who hired them are also there, standing around ready to be picked up like rag dolls to block bullets. Or maybe you can’t. I’m impressed by how clever this is, but I have to confess that I don’t have much confidence in my thoughts about stylized cases like this one.

There were more questions about the details. Strictly speaking, Tadros holds that criminals owe duties to their victims: they have to protect them (and them alone) from being further victimized by crimes. He contends that the victims can exchange the duties that are owed to them, such that criminals fulfill their duties by protecting people other than their particular victims so long as their victims are protected when other criminals do the same. This struck me as too complicated. What if the original victim is dead? What if the victim has left the country and so can’t be protected by the duty-exchange? Does that mean the criminal lacks any duties and so can’t be punished?

Something positive

One thing I very much liked about this is that Tadros is the only author we have read so far who takes seriously the idea that criminals have a debt to pay and that they pay it by being punished.

Those are both things that are widely believed but they are not mentioned by any of the other philosophical theories we have read. (That’s wrong: Morris had said something about the criminal’s debts too.)

What happened to the second day?

We had originally scheduled two days to talk about Tadros. However I got sick and had to cancel some classes. So the second day was cut out.


Tadros, Victor. 2011. The Ends of Harm. Oxford: Oxford University Press.

This page was written by Michael Green for Seminar on Punishment, Philosophy 185B, Fall 2014. It was posted December 8, 2014.
Seminar on Punishment