Brooks, Brudner and Justice

In my previous posting I suggested that any society which insists on compulsory beneficence or the compulsory acceptance of beneficent care is not a truly flourishing society. I further suggested that the only requirement necessary for a flourishing society is that each should be free to do as seems best for herself provided by so doing she does not harm others. This might be classed as the Millian position. In this posting I want to examine what this suggestion means for the basis of law. My examination will consider the position of Alan Brudner, (2009, Punishment and Freedom: A Liberal Theory of Penal Justice, Oxford) and a critique of that position by Thom Brooks (2011, Autonomy, Freedom, and Punishment, Jurisprudence, Forthcoming available at SSRN: http://ssrn.com/abstract=1791538 ).

Brudner believes we should punish others when they damage or threaten to damage our autonomy rather than because of any harm they cause us. Of course if we damage or threaten someone’s autonomy we harm them. In the light of the above I would suggest Brudner’s position might be described as follows. We should punish others only because of the harm they do to our autonomy and not because of any other harm. It is this re-described position I will consider in this posting even though it is by no means certain Brudner would entirely agree with my re-description. I have suggested the only requirement necessary for a truly flourishing society is that each of us should be free to do as she sees best provided by so doing she does not harm others. In the light of this suggestion it might appear to follow that I believe the basis of the law should be harm to others rather than restricted to harm an individual’s autonomy. This appearance is deceptive. Any harm to an autonomous agent always also harms her autonomy. If I harm an autonomous agent I do something to her which she would not do to herself. My actions prevent the agent from making a choice she would identify herself with or which satisfies her. My actions damage her autonomy. It follows all actions that harm autonomous agents also do harm to their autonomy.

Brooks believes Brudner’s position is unconvincing in some contexts. He points out “that there may be many actions we may want criminalized (e.g., traffic offences) that would not be clearly included” in any criminalization as defined by Brudner. Brooks also points out suicide, which ends the victim’s autonomy, and moderate alcohol use, which temporarily affects the user’s autonomy, both of which we would intuitively not want to be criminalized, might well be criminalized provided criminalization is based on harm to an agent’s autonomy. Someone might argue some traffic offences such as speeding have the potential to damage the autonomy of another and hence their criminalization can be justified on Brudner’s account. She might then proceed to point out it is possible to respect autonomy in different ways. Firstly it is possible to respect someone’s autonomous decisions and secondly to protect her capacity to make autonomous decisions. Let us assume a patient suffers from some incurable disease and makes an autonomous decision to commit suicide. If criminalization is justified by damage done by not respecting autonomous decisions rather than harm done to an agent’s capacity to make autonomous decisions then suicide and the moderate use of alcohol should not be criminalized. If criminalization is justified by damage to an agent’s capacity to make autonomous decisions then these actions should be prohibited. How do we choose between respecting autonomous decisions and protecting someone’s capacity to make these decisions? I have argued in previous postings respect for autonomy is intimately tied to respect for persons and it is impossible to respect persons if one doesn’t respect their decisions, see for instance http://woolerscottus.blogspot.com/2008_08_01_archive.html . If my arguments are accepted then it follows that whilst we must respect someone’s autonomous decisions and protect her capacity to make these decisions that when these two ways of respecting autonomy are incompatible we should give precedence to respecting autonomous decisions. It further follows Brudner’s justification of criminalization may be able to account for the cases Brooks raises.

Brooks states that he strongly agrees with Brudner’s focus on offering a political, not a moral, theory of punishment. I’m by no means sure this focus on a purely political basis is possible. It seems to me if we accept Brudner’s position, that the legality of some action depends on whether it harms or threatens to harm our autonomy, we must also implicitly accept that the domain of legal responsibility is the same as the domain of legal concern. Accepting the above means we must accept only all autonomous agents can be held legally responsible and it also means we must accept the domain of legal concern only extends as far as these agents. Accepting the domain of legal concern only extends as far as autonomous agents seems problematic. Clearly children are not fully autonomous agents and equally clearly a child is of legal concern even though she cannot be held to be legally responsible for her actions. In the case of children this problem might be overcome in the same way as traffic offences above. Brudner’s position might be slightly modified so that the legality of some action depends on whether it harms or threatens to harm our potential autonomy. However even if this modification is accepted a problem remains. Let us assume that animals cannot be autonomous. Clearly if a farmer or pet owner lets her animals starve to death the fate of these animals should be of legal concern. Even more clearly severely handicapped children and old people suffering from dementia should be of legal concern even though these people will never be autonomous.

In the light of the above it seems to me that the legality of an action cannot be based solely on political concerns about autonomy. Let it be accepted the only legal limitations a truly flourishing political society may impose on an agent’s autonomous decisions must be to limit the harm her decisions do to others. However what counts as harm is based sometimes depends on moral concerns completely unconnected to concerns about autonomy. Depending on the moral interpretation of what counts as harm the constraint of harm on the unbridled exercise of autonomy may vary greatly.