The Origins of The Objection
In this exercise in intellectual history I trace the development of the objection to
utilitarianism (or consequentialism) that it would sometimes favor deliberately punishing
an innocent person. I will call this The Objection, and I describe its origins.
Utilitarianism is the theory that asserts that the morally right action is the one that
produces the most happiness. Consequentialism is the generic theory that asserts that the
morally right action is the one that produces the most good. Utilitarianism is thus a form
of consequentialism, but there are others. The most well-known other forms of
consequentialism were developed after most of our story is over, so we can work on the
assumption that The Objection would have been directed specifically at utilitarianism.
It is now a familiar criticism to argue that utilitarianism has the logical
consequence that it would sometimes be morally right to deliberately punish an innocent
person. In certain circumstances, the argument goes, the good results of punishment that
utilitarianism seeks, especially the deterrence of intending criminals, might be achieved
by deliberately punishing an innocent person. The possibility of such a case is commonly
held to constitute a counterexample to this type of moral theory. In fact, it is commonly
thought that this is the most serious counterexample it faces. It strikes many of us as
outrageous to assert that legal officials could be doing the morally right thing in framing
and then punishing an innocent person.
In thinking about the cogency of this criticism I became interested in discovering
the origin of it. It was described by John Rawls in 1955 as a “traditional” and
1
“longstanding” objection, suggesting that it dates back to, say, the nineteenth century.1
Some more recent historians have also suggested some such a dating for it. I here recount
what I have been able to learn about this issue: The Objection was actually first clearly
stated in 1929.
I
The Early Utilitarians
In his magisterial work on Sidgwick’s moral philosophy and its intellectual
antecedents, J. B. Schneewind writes:
Utilitarianism first became widely known in England through the work of
William Paley. Within a few years of the publication of his theological version of
the doctrine in 1785, there appeared two secular versions, one by Jeremy Bentham
in 1789, the other by William Godwin in 1793. Bentham’s book was almost
completely ignored for decades.2
Let us begin by looking at these three writers. Since they were all concerned to
defend some form of utilitarianism, we need to see if they exhibit any sense of needing to
respond to The Objection. This would be some evidence for the conclusion that an
opponent had offered it, or that they considered it a significant difficulty. A few scholars,
who have also touched on the history of The Objection, have unearthed evidence
suggesting that it was ‘in the air’ early on in the history of utilitarianism. I will try to
show otherwise.
John Rawls, “Two Concepts of Rules.” The Philosophical Review 64 (1955), pp. 3-32,
at 3, 4, and 18.
2
J. B. Schneewind, Sidgwick’s Ethics and Victorian Moral Philosophy (Oxford: Oxford
University Press, 1977), p. 122.
1
2
I can only mention, and not explore, the radically different substantive
conclusions about the use of punishment that these three reach. Paley in effect defends
the ‘bloody code’ of contemporary English law, which made many property crimes
subject to the death penalty. (However, he also defends the use of the royal prerogative of
mercy, which he thought meant that only 1 in 10 death sentences were actually carried
out.)3 Godwin lies at the opposite extreme: while he admits that in theory state
punishment could benefit society, he defends anarchism on the grounds that in fact it
never does do this.4 Bentham lies somewhere in between, though it is clear that he is
deeply critical of contemporary English practice, sometimes because of its leniency and
sometimes because of its severity.
So, let us focus on this question: were any of these early utilitarians concerned
about the possibility that using punishment to increase human happiness might justify
deliberately punishing an innocent person?
Paley. At the end of the chapter on punishment in The Principles of Moral and
Political Philosophy Paley does briefly consider an issue about the treatment of the
innocent. He mentions and condemns two “popular maxims”. Use of these evidentiary
maxims leads, he believes, to “injudicious acquittals”.5 The second maxim is of particular
interest, since it explicitly mentions guilt and innocence. It is the principle “that it is
3
Paley, Principles, op. cit., p. 532.
He grants that punishment by private individuals intended only to restrain individuals
who pose a threat to society is permissible in emergencies. William Godwin, Enquiry
Concerning Political Justice and Its Influence on Morals and Happiness, 3rd Edition,
edited by F.E. L. Priestley (Toronto: University of Toronto Press, 1946), vol. II, pp. 379;
384; 393. (Originally published, 1798)
5
Ibid., p.551.
4
3
better that ten guilty persons escape than that one innocent man should suffer.”6 Paley
disagrees. He concludes the chapter thus:
The security of civil life…is protected chiefly by the dread of punishment. The
misfortunes of an individual, for such may the sufferings, or even the death of an
innocent person be called, when they are occasioned by no evil intention, cannot
be placed in competition with this object. I do not contend that the life or safety of
the meanest subject ought, in any case, to be knowingly sacrificed. No principle
of judicature, no end of punishment can ever require that. But when certain rules
of adjudication must be pursued, when certain degrees of credibility must be
accepted, in order to reach the crimes with which the public are interested; courts
of justice should not be deterred from the application of these rules, by every
suspicion of danger, or by the mere possibility of confounding the innocent with
the guilty. They ought rather to reflect, that he, who falls by a mistaken sentence,
may be considered as falling for his country; whilst he suffers under the operation
of these rules, by the general effect and tendency of which, the welfare of the
community is maintained and upheld.7
This is a chilling and evasive passage.8 But it is clear that Paley is concerned with
the burden of proof governing criminal trials. He accepts that the level of certainty
required for conviction by utilitarianism will mean that innocent people are occasionally
and unwittingly punished. But he dismisses as unworthy of discussion the idea that
utilitarianism could favor knowingly punishing an innocent person. So it seems that he
had no familiarity with The Objection.
Bentham. Bentham presents special problems for me, because I have not
examined all of his voluminous writings. What is more, it seems that a large number of
his writings are, some 180 years after his death, still unpublished. The website of the
Bentham Project at University College London states that 25 of a projected 70 volumes
6
Ibid., 552.
Ibid., pp. 552-3.
8
The evasion occurs in Paley’s use of the phrase “falling for his country”, which suggests
the honor accorded to military men. But innocent people who are unwittingly executed
receive no honors. In Paley’s day their bodies could end up on gibbets.
7
4
of Bentham’s Collected Works have been published in this series as of December 2009.9
(However, some of the volumes will contain previously-published works.) So I will have
to present a very tentative case for this conclusion: Bentham was not aware of The
Objection, either.
An Introduction to the Principle of Morals and Legislation (1789) is often—but,
as we have seen, erroneously—thought of as containing the first systematic presentation
of a utilitarian approach to punishment.10 I can state on my own authority that the three
chapters (13-15) therein that are devoted specifically to the topic of punishment nowhere
mention as a possible problem that the theory might favor punishing an innocent person.
Does The Objection appear anywhere in the rest of his works? Given the vastness of this
terrain we might despair of ever establishing the truth of the negative existential
statement that it does not. I can, however, repeat what Frederick Rosen—who was editor
of the Bentham Project from 1983-1994—concludes after investigating the matter:
Bentham does not mention this difficulty anywhere else in his writings. Rosen writes:
“…that the innocent should be punished is never seriously considered [by Bentham].”11
Godwin. The treatment of punishment in Book VII of The Enquiry Concerning
Political Justice opens with some bold metaphysical assertions, which Godwin had
defended earlier on. Human actions are the product of necessary causes; “the assassin
9
http://www.ucl.ac.uk/Bentham-Project/Publications/public.htm
For a useful sketch of the background of Bentham’s views on punishment, and his
debts in particular to Montesquieu and Beccaria see Frederick Rosen, “Utilitarianism and
the Reform of the Criminal Law” in The Cambridge History of Eighteenth-Century
Political Thought, ed. Mark Goldie and Robert Wokler (Cambridge: Cambridge
University Press, 2006), pp. 547-72, esp. 547-63. Frederick Rosen, “Utilitarianism and
the Punishment of the Innocent: The Origins of a False Doctrine.” Utilitas 9 (1997), pp.
23-37, is devoted in part to tracing the origins of The Objection. I am indebted to him at
many points, but we also differ in some important ways, as I will explain.
11
Rosen, “Punishment of the Innocent,” op. cit., p. 25.
10
5
cannot help the murder he commits, any more than the dagger [he uses].”12 Hence, “in the
refined and absolute sense in which that term has frequently been employed, there is no
such thing as desert.”13 Godwin believes that those, like him, who accept “the doctrine of
necessity”, as well as those who have not even considered it, will agree “that the only
measure of equity is utility, and whatever is not attended with any beneficial purpose, is
not just.”14 It is in this preliminary material that Schneewind finds and quotes this
startling passage:
An innocent man is the proper subject of punishment, if it tend to good. A guilty
man is the proper subject of it under no other point of view. To punish him, upon
any hypothesis, for what is past and irrecoverable, and for the consideration of
that only, must be ranked among the most pernicious exhibitions of an untutored
barbarism.15
This sounds as if Godwin was not only aware of the suggestion that utilitarianism could
favor deliberately punishing an innocent person, but that he is “biting the bullet” and
accepting this consequence of his theory. If we read him carefully, though, we can see
that this is not what he is saying.
The passage quoted by Schneewind continues as follows:
Every man upon whom [such] discipline is employed, is to be considered as to the
purpose of this discipline as innocent. The only sense of the word punishment that
can be supposed to be compatible with the principles of the present work, is that
of pain inflicted on a person convicted of past injurious action, for the purpose of
preventing future mischief.16
12
Godwin, Enquiry, op. cit., vol. II, p. 324.
Ibid., p. 327.
14
Ibid., p. 324.
15
Ibid., p. 327. Cp. Schneewind, op. cit., p. 138.
16
Godwin, Enquiry, op. cit., vol. II, p. 327. Cp. p. 329.
13
6
Godwin’s thinking here might be put as follows. Insofar as punishment is being inflicted
on someone because she has done something wrong, it is barbaric and wrong. The person
is innocent as far as such a ‘discipline’ is concerned. But, if punishing someone will
prevent ‘future mischief’, it is morally acceptable. (It must be added: Godwin believes
that state punishment never does prevent mischief effectively, so he is opposed altogether
to its use.) However, Godwin’s phrase “convicted of past injurious action” indicates
clearly that he is not thinking of imposing a utilitarian punishment on someone who has
not performed an “injurious action”. Still, he wants to say, the punishment of such a
person is being imposed on an ‘innocent’ because she does not deserve to be punished in
“the refined and absolute sense” that believers in free will accept.
Godwin’s provocative language is not a response to The Objection, but a pointed
way to reject notions of free will and moral desert.
II
From Kant to Bradley
I propose now to look at three later figures who are important in the history of
moral and political philosophy over the succeeding century. Two are well-known critics
of the utilitarian approach to punishment (or something close to it). One is a well-known
utilitarian who is famous for his fair-minded treatment of its critics. These seem to me to
be the best places to continue our search for the origin of The Objection.
Kant. It is natural for us to suppose that Kant’s discussion of punishment in the
first part of The Metaphysics of Morals (1797) is the source of The Objection to “the
7
serpent-windings of utilitarianism,” to quote an old translation of it.17 But closer
examination of Kant’s text reveals our error. It is clear, incidentally, that the object of
Kant’s criticism is Beccaria and his only partly utilitarian theory—and not Godwin, Paley
or Bentham—because he later mentions Beccaria.18
Kant does indeed object to utilitarian thinking about the justification of
punishment. In a famous passage he writes the following. (I have numbered the
sentences.)
(1) Punishment by a court…can never be inflicted merely as a means to promote
some other good for the criminal himself or for civil society. (2) It must always be
inflicted upon him only because he has committed a crime. (3) For a man can
never be treated merely as a means to the purposes of another or be put among the
objects of rights to things: His innate personality protects him from this, even
though he can be condemned to lose his civil personality. (4) He must previously
have been found punishable before any thought can be given to drawing from his
punishment something of use for himself or his fellow citizens.19
This passage cannot be understood as presenting The Objection. It actually seems
to be making two separate points, neither of which constitutes The Objection.
Consider the first three statements: they concern the punishment of the guilty as
well as the innocent. Here Kant is most naturally understood to be asserting precisely
what Godwin called “untutored barbarism”, that is, that the only acceptable reason to
17
Immanuel Kant, The Philosophy of Law, trans. W. Hastie (Edinburgh: T and T Clark,
1887), p. 195. I think Mary Gregor wished to avoid the suggestion that Kant had
Bentham’s theory in mind, so she rendered the phrase as “the windings of
eudaemonism.” Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor
(Cambridge: Cambridge University Press, 1991), p. 141. For a recent general
interpretation of Kant’s theory of punishment see Arthur Ripstein, Force and Freedom:
Kant’s Legal and Political Philosophy (Cambridge, Mass.: Harvard University Press,
2009), ch. 10.
18
Ibid., p. 143. Cesare Beccaria, On Crimes and Punishments, trans. David Young
(Indianapolis: Hackett, 1986). Published 1764.
19
Kant, Metaphysics, op. cit., pp. 140-1. Some emphases removed.
8
punish anyone is “because he has committed a crime”. Even the punishment of a guilty
person cannot be imposed in order to achieve any “other” good for him or society. This
means that the objection Kant is making in these statements applies even when someone
guilty is punished for utilitarian reasons.20 So this is not The Objection.
Kant’s fourth statement that a person must “have been found punishable” before
any thought of producing good can be entertained seems to be making a separate point.
On a weak reading of this statement, it only requires that a court carry out the requisite
procedures before a sentence is handed down. But officials could do this and still
deliberately punish someone who they know had not committed the offenses he is to be
punished for. So on this reading of statement 4 Kant is still not making The Objection.
A stronger reading of statement 4 would treat the phrase ‘found punishable’ as a
sort of success term. This reading takes Kant to be in effect asserting that really being
guilty of the offense charged against a person is a necessary condition of his being
rightfully punished. But this means, yet again, that he is not presenting The Objection,
since this claim means that any punishment of someone who is not guilty of the offense
charged is wrongful, whether the action by the official is unwitting or deliberate. There is
no objection being made specifically about deliberately punishing the innocent.
Furthermore, the passages in Kant that present the clearest counterexamples to
specific official actions sanctioned by consequentialism—as opposed to its reasons for
20
It is true, however, that construing Kant in this way creates some tension with his claim
in the Groundwork that it is possible to act in accordance with duty but not from duty. If
Kant’s claim is that utilitarian reasons are, as it were, the wrong reasons for punishing
people—even guilty people—then the most he is entitled to conclude is that punishing
the guilty for utilitarian reasons is acting in accordance with duty but not from duty. But
that doesn’t seem to be quite what he is saying. See Immanuel Kant, Groundwork of the
Metaphysic of Morals, trans. H. J. Paton (New York: Harper and Row, 1964), p. 65.
9
carrying them out—tend to portray a very different sort of problem from the one that The
Objection does. Kant asserts that a consequentialist theory sometimes favors not
punishing the guilty, or at least not punishing them to the full extent that they deserve.21
What…should one think of the proposal to preserve the life of a criminal
sentenced to death if he agrees to let dangerous experiments be made on him and
is lucky enough to survive them, so that in this way physicians learn something
new of benefit to the commonwealth? A court would reject with contempt such a
proposal from a medical college, for justice ceases to be justice if it can be bought
for any price whatsoever.22
And there is the more famous passage of the ‘desert island’:
Even if a civil society were to be dissolved by the consent of all its members (e.g.,
if a people inhabiting an island decided to separate and disperse throughout the
world), the last murderer remaining in prison would first have to be executed, so
that each has done to him what his deeds deserve and blood guilt does not cling to
the people for not having insisted on this punishment; for otherwise the people
can be regarded as collaborators in this public violation of justice.23
The problem that Kant sees in utilitarianism is that it will sometimes favor
deliberately not punishing the guilty; it is not that it will sometimes favor deliberately
punishing the innocent. And the inviolability of justice that later writers invoke in
condemning punishment of the innocent, Kant himself invokes in condemning “overly
compassionate feelings” towards the guilty.24
Mill. The logical next place to look for The Objection is in the fifth chapter of
Mill’s Utilitarianism. By the time of its publication in 1861 the term ‘utilitarianism’ had
As Rosen notes, “Punishment of the Innocent,” op. cit., p. 25, n. 7.
Kant, Metaphysics, op. cit., p. 141. The last, ringing phrase was likely a source for the
comparably powerful opening of John Rawls, A Theory of Justice (Cambridge, Mass.:
Harvard University Press, 1971), pp. 3-4.
23
Kant, Metaphysics, op. cit., p. 142.
24
Ibid., p. 143.
21
22
10
come into use, and Mill was expounding and defending a doctrine which had been a
subject of controversy for many years. Chapter 5, “On the Connection between Justice
and Utility”, responds to what Mill describes as “the only real difficulty in the utilitarian
theory of morals.”25 The difficulty is the fact that justice seems to be a distinct part of
morality, separate from and more stringently binding on us than any consideration related
to what is useful for society. (Something like this assertion is already apparent in Kant.)
Mill approaches the issue in an abstract way, construing the problem as being partly
conceptual and epistemic. In developing his reply he does discuss various kinds of
justice, including the justice of punishment.26 If we examine this passage carefully we
can see that Mill is not responding to The Objection. It is very plausible, given Mill’s
fair-mindedness, to think that he would have responded to it, if someone had made it. The
closest we come to The Objection, I think, is this:
…there are some who say that it is unjust to punish anyone for the sake of
example to others, that punishment is just only when intended for the good of the
sufferer himself.27
But the claim reported by Mill does not articulate The Objection, since it applies to the
punishment of the guilty, as well as to the innocent. And Mill treats it as simply one of a
number of familiar, and plausible, but also conflicting, principles of justice that require an
appeal to the principle of utility in order to be given their proper interpretation and
weight. Thus, immediately after the quoted passage Mill mentions a competing principle:
25
John Stuart Mill, Utilitarianism, ed. George Sher (Indianapolis: Hackett, 1979), p. 62.
See also Schneewind, Sidgwick, op. cit., ch. 5, for a discussion of the criticisms of
utilitarianism that Mill was responding to in this work. He does not mention The
Objection.
26
Ibid., pp. 54-6.
27
Ibid., p. 54.
11
Others maintain the extreme reverse, contending that to punish persons who have
attained years of discretion, for their own benefit is despotism and injustice, since,
if the matter at issue is solely their own good, no one has a right to control their
own judgment of it; but that they may be justly punished to prevent evil to others,
this being the exercise of the legitimate right of self-defense.28
Thus, it is evident that Mill does not treat the claim in the first passage as presenting a
specific counterexample to his whole theory.
Bradley. We would think to search next within the most important philosophical
tradition opposed to utilitarianism in the late 19th century, British Idealism. And Rosen,
who was searching for the origin of The Objection, thinks that he finds it there, in F. H.
Bradley’s Ethical Studies (1876).29 (On the other hand, Rosen remarks that Bradley’s
criticism is not developed by the other British Idealists.30) I think that Rosen is mistaken
in finding the objection in Bradley, as I will now try to show. This will take a little work,
given the obscurities of his work.
Bradley’s discussion of punishment, like Godwin’s, occurs in a treatment of a
metaphysical issue, the one we would now call the compatibility of determinism and
moral responsibility—or, as he puts it in the title of Essay 1, “The Vulgar Notion of
28
Ibid.
There is a certain irony, given Bradley’s later paper on punishment, in supposing that
he objected to utilitarianism because it might favor punishing the innocent. “Some
Remarks on Punishment” (1894) looks with favor on some sort of Darwinian “social
surgery” to rid the “social organism” of the “unfit”. F. H. Bradley, Collected Essays
(Oxford: Oxford University Press, 1935), pp. 149-164, at 152-3. While he grants that
people will always be likely to “confine the name of punishment to that surgery which is
retributive” Bradley thinks “the absolute restriction of punishment to crime…is the very
center of the position threatened by Darwin.” Darwinism, in other words, “tends…to
break the connection between punishment and guilt”. Ibid., p. 153. So Bradley is
prepared to assert that the “surgery” he vaguely describes, and tentatively endorses, will
be a sort of punishment visited on masses of innocent people.
30
Rosen, “Punishing the Innocent,” op. cit., p. 26.
29
12
Responsibility in Connection with the Theories of Free-Will and Necessity.” So the kind
of responsibility that Bradley is interested in is moral, and not specifically legal.31 Given
that this is his topic, we would expect him to investigate ‘blame’ rather than
‘punishment’. However, Bradley is almost prepared to accept Mill’s statement that
“[Moral] responsibility means punishment”: Bradley’s only modification is to say that
moral responsibility means liability to punishment.32 So it is clear that both Mill and
Bradley, despite their many differences, are using ‘punishment’ to include the sentences
of the “moral tribunal” or the “court of conscience”, as well as the sentences of legallyconstituted courts.33
The first half of Bradley’s essay deals with the question of whether the common
sense (or ‘vulgar’) notion of moral responsibility is compatible with certain metaphysical
theories of freedom and necessity. He concludes that the vulgar notion of moral
responsibility, especially as regards character, is not completely compatible with
determinism (or ‘Necessity’). Then, as a sort of test of his conclusions, he returns to the
issue of punishment in the legal sense. “Let us see, then, what punishment means first for
the vulgar, and, next, for the believer in Necessity.”34 Three pages afterwards there
occurs the first passage that Rosen highlights:
31
F. H. Bradley, Ethical Studies, second edition, (Oxford: Oxford University Press,
1962), pp. 1-3.
32
Ibid., p. 4; 26. Bradley does not give the source for Mill’s statement. It is Mill,
Examination, op. cit., p. 454. In fact, most of Bradley’s criticisms of Mill are directed at
the compatibilism Mill defends in this work, not at Mill’s claims in Utilitarianism.
33
Bradley, Ethical, op. cit., p. 3. Cp. How Mill speaks of the “reproaches” of a person’s
conscience as being a sort of punishment. Utilitarianism, op. cit., p. 47.
34
Bradley, Ethical, op. cit., p. 26.
13
We must be careful here not to suffer ourselves to be led astray…we must not
wander to a discussion of the right to punish. We need not ask how it is that, if 99
men are of opinion that it is more convenient, both for the 99 and the 100th, or for
the 100th without the 99, or for the 99 without the 100th, that he, the 100th, should
cease to exist—that therefore it is right for their opinion to be conveyed to him by
the hanging of him, whatever may be his opinion on the subject. The discussion of
this question we leave to utilitarian philosophers.35
Bradley’s antipathy to utilitarianism is clear in this passage, but I think it is also clear that
he is not making The Objection. There is no claim (as we would expect) that the
utilitarian will favor the opinion of the majority to the detriment of the 100th person. It
seems, rather, that Bradley is disparaging its inclination to settle moral questions by a sort
of counting, however exactly that comes out in a given case. (It is an incidental oddity
that Bradley constructs the example using the opinions of the parties, rather than their
happiness and unhappiness.) And, crucially, there is no mention (as we again would
expect) that the 100th person is innocent.
I think we can see that the second passage in Bradley that Rosen claims presents
The Objection does not do so either.36
It is surprising that Rosen does not mention a third passage in Bradley, one that
has historical importance. This passage immediately follows Bradley’s proposal to
consider “what punishment means…for the vulgar.”
Ibid., p. 29. Rosen does not quote the first two sentences. Rosen, “Punishing the
Innocent,” op. cit., p. 26.
36
Bradley, Ethical, op. cit., p. 31, n. 2. The portion of this passage that Rosen quotes
concerns the ‘correction’ of animals. Bradley claims that a utilitarian has no way to
distinguish this from punishment, properly so-called. At this point he has returned to the
definitional problem he is mainly concerned with, and is no longer addressing the
substantive right to punish, which we saw he treats as a digression in the passage quoted
above. So it is hard to see how this second passage could constitute a substantive
counterexample to utilitarianism. And, in fact, it seems that given Bradley’s usage he
should have objected to ‘necessitarian punishment’, rather than “utilitarian punishment”.
35
14
If there is any opinion to which the man of uncultivated morals is attached, it is
the belief in the necessary connection of punishment and guilt. Punishment is
punishment only where it is deserved. We pay the penalty, because we owe it, and
for no other reason; and if punishment is inflicted for any other reason whatever
than because it is merited by wrong, it is a gross immorality, a crying injustice, an
abominable crime, and not what it pretends to be. We may have regard for
whatever considerations we please—our own convenience, the good of society,
the benefit of the offender; we are fools and worse, if we fail to do so. Having
once the right to punish, we may modify the punishment according to the useful
and the pleasant; but these are external to the matter, they can not give us a right
to punish, and nothing can do that but criminal desert.37
Part of the historical importance of the passage rests on the fact that when, as we
will see, W. D. Ross in 1929 does criticize utilitarianism on the grounds that it might
favor deliberately punishing an innocent person he immediately goes on to say this:
Plain men, and even perhaps most people who have reflected on moral questions,
are likely to revolt against a theory which involves such consequences, and to
exclaim that there is all the difference in the world between such action and the
punishment of offenders against the law. They feel the injustice of such action by
the state and are ready to say, in the words imputed to them by Mr. Bradley:
“Punishment is punishment…”38 Etc.
Ross seems to be suggesting that Bradley, or at least the plain man whose opinion
Bradley is trying to articulate, revolts against the specific logical consequence of
utilitarianism that Ross has just noted, viz., that it would sometimes favor deliberately
punishing an innocent man.
Another part of the historical importance of the passage from Bradley is
backward-looking. It is a way for him to bring Kant and Hegel’s views on punishment to
the attention of English-speaking philosophers. After describing the views of “the vulgar”
37
38
Ibid., pp. 26-7.
The Right, op. cit., pp. 57.
15
in the quoted passage he goes on39 to translate into English, for the first time, it seems, a
part of Kant’s Metaphysics of Morals, including his version of the four numbered
sentences above. Bradley then asserts that the views on punishment of “unthinking
people” are—unbeknownst to them and to English philosophers—the same as those of
Kant and Hegel. So the similarities between Bradley’s assertions and Kant’s are not
coincidental.
This means that we can again see, if we look closely, that the second passage
from Bradley that I have quoted at length does not present The Objection, as Ross
suggested that it did. Just as Kant does, Bradley is making two different claims. First of
all, he is asserting that punishment must be imposed for no other reason than “because it
is merited by wrong”. This claim concerns the reasons for punishing both the guilty and
the innocent. No special notice is being given to the punishment of the innocent. Second,
Bradley asserts that only “criminal desert” gives society the right to punish someone. But
this point condemns both unwitting and deliberate punishment of the innocent.
To conclude: Bradley’s work does not present The Objection. And it seems that
no one else had done so by 1876.
39
Bradley, Ethical, op. cit., p. 28.
16
III
The Real Origins of the Objection
The Objection seems to have been developed by philosophers working at Oxford
in the 1920’s and 30’s. We can almost watch it taking shape. In a 1927 article A. C.
Ewing merely poses a question:
If the justification of punishment lies solely in its future consequences…why is it
wrong to punish an innocent man?40
In 1928 E. F. Carritt offers an answer in the form of a brief counterexample.
…if prevention of crime be the whole justification and nature of punishment, then
the hanging of an innocent man who is universally believed guilty is as ideal an
instance of punishment as can be conceived.41
In 1929 Ewing is likewise brief:
It would indeed be difficult on purely deterrent principles to condemn the
punishment of an innocent man if he were only popularly supposed to be guilty,
for it would deter others as much as if he were really guilty.42
It is possible, given the brevity of their examples, to suppose that Ewing and Carritt still
have in mind unwitting punishments of innocent people, as Paley in 1785 did. After all,
even if legal authorities unwittingly punish an innocent person, this person might be
A. C. Ewing, “Punishment as a Moral Agency: An Attempt to Reconcile the
Retributive and Utilitarian View,” Mind 36 (1927), p. 295.
41
The Theory of Morals (Oxford: Oxford University Press, 1928), p. 109.
42
The Morality of Punishment (London: Kegan Paul, Trench, Trubner, 1929), p. 54.
40
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widely thought to be guilty, and their punitive action might convince some people that
‘crime doesn’t pay’.
But by the time we encounter this passage in Ross, also published in 1929, there
can be no doubt that we have a description of the deliberate punishment of an innocent
person:
…a government which found some offense against the law prevalent, and in its
inability to find the offenders punished innocent people on the strength of
manufactured evidence, would still be able to justify its action on the same
general principle [viz. utilitarianism]….43
H. W. B. Joseph repeats The Objection in 193144, and J. D. Mabbott in 1939 seems to.45
In a later book (1947) Carritt elaborates slightly on Ross’ scenario, in effect
acknowledging a certain difficulty:
…if some kind of very cruel crime becomes common, and none of the criminals
can be caught, it might be highly expedient, as an example, to hang an innocent
man, if a charge against him could be so framed that he were universally thought
guilty; indeed this would only fail to be an ideal instance of utilitarian
‘punishment’ because the victim himself would not have been so likely as a real
felon to commit such a crime in the future; in all other respects it would be
perfectly deterrent and therefore felicific.46
W. D. Ross, “The Ethics of Punishment.” The Journal of Philosophical Studies (later,
Philosophy) 4 (1929), p. 205. Philosophers are more likely to have encountered the
passage in The Right and the Good (Oxford: Oxford University Press, 1930), pp. 56-7.
44
Some Problems in Ethics (Oxford: Oxford University Press, 1931), p. 93.
45
“Punishment.” Mind 48 (1939), pp.152-67, at 152. Mabbott refers only to Ewing’s
Morality, op. cit., so it is not completely clear whether he has in mind the deliberate
punishment of an innocent person. Mabbott states that the relevant difficulty is “wellknown.”
46
Ethical and Political Thinking (Oxford: Oxford University Press, 1947), p. 65. It is this
passage that Rawls quotes in “Two Concepts”, op. cit., before he begins to present a
utilitarian reply to it.
43
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These early versions of The Objection have largely been forgotten. Many
philosophers recall the more vivid example modeled on American experience presented
by H. J. McCloskey (an Australian) in 1957.
Suppose that a sheriff were faced with the choice either of framing a Negro for a
rape that had aroused hostility to the Negroes (a particular Negro generally being
believed to be guilty but whom the sheriff knows not to be guilty)—and thus
preventing serious anti-Negro riots which would probably lead to some loss of life
and increased hatred of each other by whites and Negroes—or of hunting for the
guilty person and thereby allowing the anti-Negro riots to occur, while doing the
best he can to combat them. In such a case the sheriff, if he were an extreme [i.e.,
‘act’] utilitarian, would appear to be committed to framing the Negro.47
McCloskey slightly modified the example in a 1965 article, in order to eliminate
some of the sheriff’s uncertainty in the original version, and, I think, to remove worries
about how the sheriff’s behavior could discredit the legal system. So he describes a
utilitarian “visiting an area in which there was racial strife.” This utilitarian knows that
some black man has raped a white woman, and that his false testimony about a particular
black man will prevent riots and lynchings. McCloskey asserts that “he has, on utilitarian
theory, an evident duty to bring about the punishment of an innocent man.”48 Of course,
in this way of describing the case it is possible to suppose that the legal officials involved
sincerely believe that the man whom the utilitarian accuses is guilty.
Rawls’ description of The Objection in 1955 as a “traditional” problem for
utilitarianism is incorrect. In fact, his attempt to formulate a utilitarian response to it was,
I believe, the first of its kind.
H. J. McCloskey, “An Examination of Restricted Utilitarianism.” The Philosophical
Review 66 (1957), pp. 468-9.
48
H. J. McCloskey, “A Non-Utilitarian Approach to Punishment.” Inquiry 8 (1965), pp.
255-6.
47
19