Response to Michael Davis

Abstract

My paper was not intended as a criticism of Michael Davis's earlier paper, but rather a discussion of an argument that caused me some concern. It caused me concern because it seemed on the one hand to be sound and, on the other hand, to have frightening implications. I had encountered this argument in various places including, as I thought, in the Davis paper. If I have wrongly attributed it to Davis, I apologize to him. I do not think I made a mistake in the attribution, however; and in any case it is the argument itself I am interested in, and not in criticizing Davis. The argument that is the focus of my paper, whether or not it is Davis's argument, would justify the detention of dangerous persons purely on the basis of future harm, regardless of whether they had broken the law or caused any injury in the past.(1) I would like to be able to show clearly that the argument is unsound, and in my paper I worked toward that end. Nevertheless, as I conceded in the paper, I was not, and am not, entirely satisfied that I had succeeded. Although Davis thinks I am mistaken in attributing this argument to him, some of his comments raise questions about my paper that deserve to be answered, and I will try to answer them below.(2) Davis's response raises the following philosophical questions about my treatment of the argument at issue: 1. Whether an to prevent harm is necessary for the argument to work, as I say it is. 2. Whether the dangerous person who refuses to detain himself violates a standard that would justify punishing him, as Davis says he does. 3. Whether, as Davis claims, the truly dangerous person cannot, for practical purposes, avoid doing harm. If I am wrong about these things, then the argument is sound, and preventive detention may be given the retributive justification that Davis wants to give it. I do not see, however, that Davis has shown that I am wrong about any of them. While he denies that the dangerous person must violate an obligation, on the one hand, he concedes on the other that some standard must be violated. I am content to let him use the word obligation any way he likes, so long as he will concede that some thing must be violated, and that violation of that some thing will be morally sufficient to justify punishment. His problem then is to derive a standard that the dangerous person violates, and though he makes a stab at that, I think it is clear that he does not succeed. Finally, if the argument is about persons who cannot control their harmful behavior, it is not about preventive detention. Instead it is about something like involuntary commitment, which does not require a retributive justification. I take the controversy over preventive detention to be about people who, whatever their intentions now, will in future commit violent crimes, and will do so intentionally and voluntarily. If there are no such persons, then there is no question about preventive detention. 1. As to the first point - Davis's claim that an to prevent harm is not necessary to his argument - Davis himself shows that this is not so, for his argument requires a functional equivalent of obligations, namely standards. About his definition of recklessness, he says: This definition assumes standards to which reasonable persons ordinarily adhere; it does not, however, assume those standards to be obligations.... The standard in question might, for example, be a standard of prudence or decency.(3) In denying that the standards are obligations, is he denying that they are requirements? Are they things that we consider merely a good idea, but that are not required even by prudence or decency? Or is it that in denying that they are obligations he is denying that they are moral requirements? So that what is required by decency (an of decency?), for example, is not an obligation, but what is required by morality might be? No matter, for I would be happy to rephrase the argument in terms of these standards: No one may be punished for failing to detain himself unless in doing so he violates some standard which is morally sufficient to warrant punishment. …