Professor Tadros’ Wild Ride: Duty, Defense, Deterrence and the Criminal Law

Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford University Press 2011).

I grew up in Miami and spent many a Memorial Day weekend at Disney World in Orlando, Florida.  One of my favorite rides was Mr. Toad’s Wild Ride, with its unexpected twists and turns and characters jumping out of nowhere.  Reading Victor Tadros’ The Ends of Harm made me feel like that kid again.  Here are three reasons why.

First of all, the thesis upends much of our thinking about the justification for punishment.   Tadros first attacks retributivism, which is roughly the view that desert is at least a necessary, if not a sufficient, reason to punish.  (There is, by the way, no definition of retributivism that is not somewhat contentious these days.)  He then turns to an unusual defense of general deterrence.  He believes that the justification for the criminal law should be that it prevents harm.  However, he also takes seriously the deontological constraint that we cannot use people as “mere means.”  This latter issue frequently gets deterrence (and other consequentialist) accounts of the criminal law into trouble, as retributivists argue that consequentialism theoretically permits the scapegoating of innocent persons.  If you can prevent harm by scapegoating an innocent person, a general deterrence theorist simply lacks the theoretical resources to explain why this should not be done.  Tadros agrees with retributivists that one cannot use people, and so he needs an account that does not rely on desert to explain why it is permissible to punish some people to discourage others from committing crimes.  The answer he comes up with is that offenders have a duty to suffer in the name of general deterrence.

The duty view goes something like this.  Kim decides that she wants to kill Victor so she rolls a boulder down a hill at him.  Because she did something she should not have done, she now has a duty to stop the boulder, a duty that might include throwing herself in the boulder’s path.  And others may force Kim to do her duty by pushing her in front of the boulder.  Finally, if the boulder hits Victor and breaks two of his legs, Kim has a duty to rectify the harm, and says Tadros, this duty is not just the amount necessary to compensate for the harm caused, but rather the duty is as large in scope as the duty Kim would have had to suffer harm to prevent the harm to Victor in the first place.  With this basic structure in place, Tadros makes further moves to explain why Kim and Kelsy might exchange duties owed to Victor and Vera, why the rectificatory duty should be understood as a duty of protection, and why the state is best situated to be in the midst of this duty of protection swap that now becomes a deterrent-based criminal system.  I have my doubts about whether the Tadros’ attack on retributivism is fatal and about whether his duty view is successful, but the originality of this work bears a close read for anyone interested in criminal law theory, irrespective of whether you find the central thesis persuasive.

Second, this book has an abundance of arguments.  No review, nor any combination of reviews, will do justice to the dizzying number of arguments that this book contains.  Retributivism, self-defense, duties, the means principle, and the role of the state may be the headliners, but there are many, many supporting arguments in this book.  For example, in the midst of a discussion about self-defense and the role of causation, Tadros finds it necessary to detour into the relationship between corrective and distributive justice, concluding that our duty to compensate for harms we cause is greater than our duty to rescue (or otherwise redistribute our resources).  Tadros concludes that “causation is morally basic” (p. 186), and with this conclusion in hand, he returns to his analysis of how much we may harm individuals to avert harms that they will otherwise cause.  Tadros has never met an issue he did not address head on.  This is highly commendable, as he doesn’t shirk from difficult side issues, but it means that the reader is going to need to be on her game at all times to be able to work through the intricacies.

Third, this book is playful.  It may not have lions, and tigers, and bears (oh my!), but it is full of boulders, and sharks, and claw hammers, and bears (oh my!).  These hypotheticals are all deployed for highly nuanced theoretical moves; they have real work to do.  Tadros defends his methodology early on, maintaining that such hypotheticals allow him to weed out other distractions.  Nevertheless, there will definitely be those readers who find that Tadros’ imaginative hypotheticals are too imaginative and too hypothetical, but there is a pure joy to the argument that comes through loud and clear.

But for all that Tadros’ book presents unexpected arguments and intricate obstacles, in closing I should note that there is one important way in which this book bears no resemblance to a ride at Disney World.  Some potential readers may eschew this book because it is too philosophical, too hypothetical driven, too intuition reliant, and in many ways, too unworldly.  But make no mistake about it, Tadros did not write this book to design a ride at an amusement park.  As he revealed in personal conversations, Tadros started this book as a book on retributivism, and when he began writing, he visited a prison.  And, seeing that stark, desolate, and sobering institution, Tadros sought to write a book that could justify to the incarcerated the suffering we impose on them.  Tadros has put his agile, analytical mind to work to solve a problem that should be of central concern to all of us.  And in that spirit, his work should be read and celebrated.