Abstract
The purpose of this paper is twofold. First, I defend and expand the Fortificationist Theory of Punishment (FTP). Second, I argue that this theory implies that non-consensual neurointerventions – interventions that act directly on one’s brain – are permissible. According to the FTP, punishment is justified as a way of ensuring that citizens who infringe their duty to demonstrate the reliability of their moral powers will thereafter be able to comply with it. I claim that the FTP ought to be expanded to include citizens’ interest in developing their moral powers. Thus, states must ensure that their citizens develop their moral reliability, not only because they must enforce their citizens’ compliance with certain duties, but also because states have the duty to maintain the conditions for stability and satisfy their citizens’ interest in developing their moral powers. According to this account of the FTP, if neurointerventions are the only or best way of ensuring that offenders can discharge their fortificational duties, states have strong reasons to provide these interventions.
Highlights
The purpose of this paper is twofold
According to the Fortificationist Theory of Punishment (FTP), punishment is justified as a way of ensuring that citizens who infringe their duty to demonstrate the reliability of their moral powers will thereafter be able to comply with it
This objection would imply that, even if we accept that the Fortificationist Theory of Punishment produces certain reasons in favour of neurointerventions, these reasons are decisively outweighed by the reasons we have to protect individuals’ mental freedom and bodily rights
Summary
According to Howard, the Fortificationist Theory of Punishment offers a new interpretation of rehabilitative approaches to criminal justice, which is immune to the standard objection raised against such approaches – that they fail to treat offenders as moral agents rather than blameless victims. The moral power that is relevant in the context of the criminal law is reasonableness – the capacity for a sense of justice, which includes the epistemic aspect of understanding the requirements of justice and the motivational aspect of being willing to comply with those requirements.[6] The Fortificationist Theory of Punishment implies that, when faced with a criminal offender who has failed to fortify her moral powers, states must enforce that offender’s duty by targeting the epistemic or the motivational aspect of her reasonableness, or both This must be done in the appropriate way, given that, for example, education may be the appropriate way to fortify one’s lack of moral understanding, but cases of motivational deficiencies may require different interventions, such as counselling. This seems to be one justification for the duty that states have to provide good, mandatory education for children and appropriate pedagogical policies for individuals with cognitive disabilities.[8]
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