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How to Be Fair to Psychopaths
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Neil Levy's provocative paper raises a number of fascinating issues. Here we want to focus on just one of these—the role of principles concerning fairness in his basic argument that we should not punish psychopaths. For present purposes, we will simply go along with Levy's claim that psychopaths lack moral knowledge (but see Vargas and Nichols [2007]).

In the background of Levy's central argument is the assumption that a person is not morally responsible for things that fall entirely outside his scope of control. This assumption shows up in the following claim: "If an agent comes to be bad through a process that entirely bypasses her ability to appreciate and to respond to reasons, including moral reasons, she is not a responsible agent at all" (2007, pp. 133–134). Psychopathy is a wonderful example here, because there is reason to think it has a strong genetic component. But why should we accept his claim that we have to absolve those who are born irrevocably bad?

It would seem that Levy here appeals to a familiar and powerful intuition that it is unfair to blame and punish an agent for a characteristic (or behavior) that was caused by factors outside the agent's scope of control. For instance, Levy writes, "It would be unfair to blame me for my bad art if I lack talent, because there was nothing I could reasonably have been expected to do to make myself a good artist" (2007, p. 133, emphasis in original). Let us give this principle a label:

Unfairness: It is unfair to punish someone for a characteristic (or behavior) that was caused by factors outside the agent's scope of control.

That is a powerfully intuitive claim. Levy uses this principle to argue that, because psychopaths' deficiencies in moral judgment were caused by factors outside their scope of control, it is unfair to punish psychopaths for the behavior that issues from these deficiencies. But there is another powerfully intuitive claim in the immediate vicinity:

Fairness: It is (sometimes) fair to punish psychopaths.

As Watson (1987) illustrates beautifully with the case of Robert Harris, we find a claim like Fairness especially intuitive when provided with details about the crimes of the psychopath. If Unfairness together with the facts about psychopathy implies that it is unfair to punish psychopaths, then another option is to run a modus tollens. That is, we can fix on Fairness (along with other similar considerations) and use that as a basis for rejecting Unfairness. So here we have an interesting, and we think quite deep, question: Should we sustain Unfairness or Fairness?

Levy does not seem to consider the option of revising the principles that lead to his conclusion that psychopaths are not responsible. He writes, "We are not here concerned with whether it is appropriate to act as if psychopaths were responsible. We are instead concerned with a factual question: whether they are responsible for their actions" (2007, p. 137). Given that the question is whether psychopaths are morally responsible, it is not obvious that this is indeed a factual question. But the more important point is that, although we often use our principles to guide judgments about cases, we sometimes use cases to drive revisions of principles. Consider first a familiar example from scientific classification. In the nineteenth century, the category of mammal was largely structured around the principles that mammals bear live young and have milk glands. The discovery of the platypus raised a problem because the platypus has the latter trait but not the former. The result, of course, was to revise the principles of mammal-hood to encompass the platypus. Although most mammals bear live young, taxonomists decided that this is not a necessary condition.

In the normative domain, we also find case-driven revisions of principles. For centuries, it was a central assumption that an artwork had to be crafted by the artist. Duchamp's ready-mades violated this assumption with great aplomb. The art world revised the principles to make room for Duchamp. Finally, and of most direct relevance, sometimes the principles governing attributions of moral responsibility themselves are subject to revision. In the seventeenth century, it was...



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