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Philosophical Papers

Vol. 39, No. 3 (November 2010): 315-341

ISSN 0556-8641 print/ISSN 1996-8523 online 2010 The Editorial Board Philosophical Papers

Justice and RetaliationStephen Darwall

Abstract: Punishment and Reparations are sometimes held to express retaliatory emotionswhose object is to strike back against a victimizer. I begin by examining a version of this ideain Mills writings about natural resentment and the sense of justice in Chapter V ofUtilitarianism. Mills view is that the natural sentiment of resentment or vengeance that isat the heart of the concept of justice is essentially retaliatory, therefore has nothing moral init, and so must be disciplined or moralized from without by the desire to promote the

general welfare. I argue to the contrary that if reactive attitudes like resentment and moralblame are understood as Strawson analyzed them, as essentially interpersonal or secondpersonal, they have a different content and function. They implicitly demand respect in a

way that also expresses respect for the victimizer as a member of mutually accountablecommunity of moral equals. Some implications of this idea are discussed for the expressivetheory of punishment and civil recourse theories of torts.

Retribution can be conceived within a theory of just punishment or as

retaliation, as in thelex talionis

: an eye for an eye, and a tooth for a tooth.1

Retaliation and retaliatory emotions are not essentially about justice; they

are about striking back or gaining vengeance, either simpliciter or to

restore honor. When retribution is conceived as retaliation, retributive

emotions become retaliatory emotions, a victims wanting to do to his

victimizer what his victimizer has done to him. In what follows, I argue

that the states of mind that P. F. Strawson famously termed reactive

attitudes, through which we hold others and ourselves morally

responsible, are not essentially retaliatory. To the contrary, reactiveattitudes express reciprocal respect and so mediate relations of mutual

accountability (Strawson 1968).

1 The Oxford English Dictionary gives the following use of lex talionis: They take theField with their best Force, not only to recover their Wives, but, Lege Talionis , toplunder the Robbers of theirs. (From P. Kolbens The Present State of the Cape of Good

Hope, 1731).


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316 Stephen Darwall

In Chapter Five ofUtilitarianism, John Stuart Mill attempts to cope with

one of the strongest obstacles to a utilitarian theory of right, namely, the

objection that utilitarianism cannot account for justice (1998: V.1). Mill

considers various platitudes about justice, which he summarizes by saying

that the idea of justice supposes two things; a rule of conduct, and a

sentiment which sanctions the rule (V.23). Mills response to objections

regarding justice then consists in two mutually reinforcing prongs. The

more familiar is a rule-utilitarian theory of justice (and of moral

obligation, more generally). To have a right, and thus something that can

be infringed only unjustly, Mill says, is to have something which society

ought to defend me in the possession of (V.25). If, he continues, theobjector goes on to ask, why it ought? I can give him no other reason than

general utility (V.25).

The general form of this rule-utilitarian prong is familiar enough.

Someone has a right to something if, and only if, it would promote utility

for society to accept rules that appropriately defend everyones having it,

for example, autonomy, property, or freedom of thought. This accounts

for the first of the two things that the concept of justice supposes: a rule

of conduct that assesses acts directly and is itself assessed by

considerations of utility. But how exactly does the social acceptance of a

rule defend peoples rights and just claims? This second prong of Mills

response is less familiar. Although society will of course make use of

various formal coercive measures through law, Mill says that it is part of

the idea of justice, that rules of conduct that protect justice and rights are

sanction[ed] also by a distinctive sentiment, which he calls the sentiment

of justice.What Mill says about the sentiment of justice is much less frequently

discussed than is his rule utilitarianism.2 But the two come as a package

deal. Part of what it is for a rule of conduct to be socially realized

according to Mill is for there to be a sentiment which sanctions the rule.

To understand Mills response, it is necessary to ask, therefore, what this

2 An exception is Crisp 1997: 167-172.


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Justice and Retaliation 317

distinctive sentiment is and how it is to function within a utilitarian theory

in the defense of rights and justice.

In retrospect, it is ironic that Mills emphasis on the sentiment of

justice has been so little discussed. Mill concludes his treatment of

objections on account of justice by saying that justices conceptual

connection to the sentiment of justice poses the only real difficulty in the

utilitarian theory of morals (V.39). It has always been evident, Mill

continues, that all cases of justice are also cases of expediency.3 The

problem has been that the sentiments that are distinctively implicated in

justicemost clearly for victims of injusticedo not respond to

considerations of expediency, utility, and welfare in the way that, say,sympathy and benevolence do. It follows, in Mills view, that utilitarianism

can adequately cope with the justice objection only if the sentiment of

justice can itself be appropriately accommodated within a utilitarian

theory of justice and rights. And this is precisely what Mill thinks he has

done by the end of Chapter Five.

Ultimately, my aim in this essay is not to analyze and assess the resources

that utilitarianism and Mills version have to deal with justice, although I

shall suggest along the way that they face a fundamental obstacle that is

related to the one Mill notes. What I wish to explore, rather, is the relation

between justice (and moral obligation more generally), on the one hand,

and retaliation and the retaliatory emotions on the other. By retaliatory

emotions, I mean emotions whose object essentially includes retaliation of

some kind (vengeful anger, say). What makes Mill especially relevant to our

task is that he holds that the natural feeling or sentiment that forms the core

of the sentiment of justice, resentment, is indeed essentially retaliatory. It isa hard-wired response to strike back and retaliate against injuries that

human beings share with other animals. At the same time, Mill holds that

when the natural feeling of resentment is properly moralised, it is not

essentially tied to retaliation.

3 He must here mean that justice can be accounted for in terms of the expediency of the

relevant rules of conduct.


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318 Stephen Darwall

I agree with Mill both that justice is tied conceptually to the sentiment

or attitude of resentment4 and that a properly moralized resentment

should not be understood as essentially retaliatory. However, I believe that

Mill is mistaken about what it is for resentment to be moralized. Since

Mill takes resentment in its natural form to be essentially retaliatory, he

holds that it has nothing moral in it (V.21). To be moralized, therefore,

resentment must be disciplined by some other motive, sentiment, or

attitude that is external to it, as Mill sees it, by sympathy responding to

demands of social good (V.39).

I shall argue against this Millian claim. I will side rather with P.F.

Strawson and, as I read him, Adam Smith, who argue that resentment isproperly moralized not by being disciplined by a different motive or

feeling like sympathetic concern or benevolence. Rather, resentment of

at least one important form is what Strawson calls a reactive attitude

whose object is not to retaliate against someone who has injured one, but

to hold him responsible in a way that expresses respect for him as a

member of a mutually accountable moral community. So understood,

what resentment seeks is not getting back, but the others

acknowledgment of having wrongfully injured one and the others taking

responsibility for what he has done, for example, through compensation

and, perhaps, punitive damages. So understood, resentment is

moralized from the inside through resources that are already present

within it as a reactive attitude, rather than by some external feeling,

motive, or attitude.

Retaliation, vengeance, and honorWe can begin with what Mill says about natural resentment. It is natural,

Mill says, to resent, and to repel or retaliate, any harm done or attempted

against ourselves, or against those with whom we sympathise (V.18).

Similarly, Mill speaks of the natural feeling of retaliation or vengeance

and, since he thinks we share this response with other animals, the animal

4 And with Adam Smith who also holds this, as I shall bring out presently.


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desire to repel or retaliate a hurt or damage to oneself, or to those with

whom one sympathises (V.19,21).

There is no reason to doubt that human beings have such desires and

feelings or that resentment is frequently used to refer to them. Even here,

however, there may be useful distinctions, for example, between what Mill

calls impulses of self-defence and desires for revenge. More seems to be

going on in the desire to seek vengeance than just repelling injury.

Nevertheless, desires of both sorts seem common enough among human

beings, and resentment can refer to both.

Since I shall want to contrast resentment of the kind discussed by

Strawson and Smith5 with retaliatory impulses of both these kinds, it isworth exploring these Millian forms of natural resentment and the

relations between them further. Notice first an important psychological

mechanism that Nietzsche and Scheler described that can turn self-

defensive impulses into a desire for revenge. When someone is unable or

otherwise not in a position to respond directly to an attack, retaliatory

impulses are not discharged and may be blocked or even repressed. It is

checked or repressed retaliation that gives rise to the desire for vengeance.

Indeed, we only speak of revenge if initial retaliatory impulses have been

blocked in some way, and a grudge is developed and borne (Scheler 1961:

27). Nietzsches famous analysis of the development of slave morality out

of the ressentiment of the weak begins with such a psychic movement. In

their case, however, the weak cannot so much as bear the feeling of

personal injury so they repress it, and it is reconstructed in the dark

workshop of their unconscious as a feeling apparently responding to an

impersonal injury, thus giving rise to a sense of moral evil. The feelingeats deeply into men of ressentiment, who are incapable even of

acknowledging it to themselves and whose vengeance takes the form of a

transvaluation of aristocratic values into moral ones (Nietzsche 2006).

Retaliatory impulses of self-defense function most obviously to protect

life and limb, but they also play a role in defending positions in dominance

5 And also in Darwall 2006, from which I here draw.


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Vengeance is frequently, maybe implicitly always, a response to

perceived insult or contempt that seeks to retaliate or avenge the insult

and so restore the agents honor (or that of those with whom she

sympathizes). Owing to the nature of insults and honor, retaliation can

succeed only by expressing contempt for the insult and so dishonoring the

insulter. This is an important point of contrast with the kind of second-

personal, as I will call it, resentment that Strawson and (sometimes) Smith

discuss.6 Whereas second-personal resentment, and other reactive

attitudes like indignation and blame, seek to address their objects and

hold them accountable in a way that respectfully demands respect,

returning a kind of (second-personal) respect for disrespect, vengeanceand retaliation return (honor) disrespect, that is, contempt, for contempt.

Since social status and the honor constituting it are not moral ideas, I

shall assume that Mill is right when he says that the desire for retaliation

or vengeance has nothing moral in it (V.21). Justice and morality of

course permit self-defense, but only to the degree necessary to disable or

repel an attack, not to retaliate or avenge it. Similarly, justice gives victims

claims to compensation, but this also is different from retaliation or

vengeance. Finally, although justice warrants punishment of the guilty,

that differs from retaliation as well. Even if retributivism is correct and just

punishment involves something proportional to the injustice done, that

still does not mean that punishment reduces to getting back or even, or

simply doing to the perpetrator what he did to the victim.7 Mills diagnosis

stands, or so I shall assume.

Mill on moralized resentmentMill argues that when resentment is properly moralized, though, itis tied

to justice, and, moreover, that his rule-utilitarian account of justice can

6 Presently, I shall argue that Strawsonian reactive attitudes have an ineliminable second-personal element. For extended discussion, see Darwall 2006.7 That does not mean, of course, that practices that have also been called punishment donot involve something like retaliation. The very term lex talionis shows otherwise. The point

is that punishment as ajust practice does not involve it.


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322 Stephen Darwall

explain why this is so. I shall argue that Mills first claim is correct. I shall

argue also, however, that Mills second claim is unwarranted and that

when we understand resentment as a Strawsonian reactive attitude, we can

see that it is appropriately moralized from within rather than from

without, that is, from a perspective that is itself inherent within reactive

attitudeswhat I will call a second-person standpointrather than from the

third-person perspective of sympathetic concern or benevolence.

First, though, let us consider Mills proposal for how natural

resentment can be moralized. Mill begins promisingly. It is common

enough, he says, to feel resentment merely because we have suffered

pain (V.22). So far, this is natural resentment, not yet moralized. Forsomeones resentment to be really a moral feeling, it must respond to

whether the act is blamable (V.22). This seems clearly right. And Mill

plausibly adds that so long as someone considers only how an act affects

him individually, he is not concerning himself about the justice of his

actions. So much, he notes, is admitted even by non-utilitarian moralists.

But non-utilitarian moralists need not, and of course generally do not,

accept Mills rule-utilitarian standard for justice and hence for how natural

resentment is appropriately moralized. Mill holds that resentment is

warranted, and the act that is its object is blamable, just in case a rule

prohibiting the action would maximally promote utility were it socially

accepted, where this acceptance itselfincludes the relevant sanctioning

attitudes of resentment, from victims, and blame, from third parties. Mill

concludes that a properly moralized resentment, the sentiment of justice,

consists in the animal desire to repel or retaliate a hurt widened so as

to include all persons, by the human capacity of enlarged sympathy, andthe human conception of intelligent self-interest (V.21).

When an injured party feels the desire to retaliate, but then turns her

view from the way her injurers act affects her to its effect on all

humankind, or to the effects an act of that kind has on the collective, this

may moderate her desire, but it is hard to see how, by itself, it can change

her desires fundamental character. Perhaps she will want to hurt her

injurer less, or more, depending on the overall effects of the act or of that


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kind of action as a general rule. It could even be that the desire to hurt

flips over to the desire to benefit when she sees that the hurt to herself

buys overall benefit, either in the case at hand or in this kind of case in

general. Either way, she will simply be wanting to return bad for bad or

good for good (tit for tat), in the first case, on her own behalf, in the latter,

on everyones behalf.

It is also hard to see how reflection on benefits and harms, taken in

themselves, can give someone the idea of conducts justice or injustice. From

the perspective of the basic psychic mechanism involved in Millian natural

resentment, we would expect reflection on the overall effects of an act,

either a particular instance or such actions as a general rule, simply to leadto a desire to hurt or to benefit the agent in proportion to how negative or

positive those overall effects might be for the agent or all humankind,

respectively.

It seems most natural to read Mill, however, as intending that

sanctioning sentiments should come into the utility assessments

themselves. When we do the rule-utilitarian calculations, we need to take

account of the effects of peoples having rule-sanctioning sentiments as

part of what is involved in the social acceptance of a rule. Indulging a

desire to retaliate can have bad effectsjust think of the Hatfields and the

McCoys, not to mention ethnic, tribal, and sectarian strife on a larger

scale. Reflecting on the costs of retaliatory emotions can lead us to

moderate how much we want to hurt others, not just in the sense of

wanting to hurt them less, but in the sense of wanting less to hurt them.

The Millian view would seem to be that natural resentment is

moralized by reflection on the benefits and costs of the whole socialpractice of sanctioning rules, where this includes the having of various

sanctioning attitudes. This is why I say that Mills view treats resentment as

moralized from the outside rather than from within materials that

resentment itself provides. What sets one thinking about the overall

benefits and costs, not only of actions, but of sanctioning attitudes

themselves as part of practices that discourage actions that are their

objects, is nothing within resentment, however broadly conceived, but


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324 Stephen Darwall

some desire like universal benevolence that regulates it from the outside.

Responding to the act itself (or acts of that kind), from the perspective of

the injured party or parties (in the case of all humankind), we want to

harm the agent(s) in proportion to the harm caused (again, to oneself or,

on balance, to all humankind). But it may be a bad thing as a general

practice for us to give in to these responses. When I reflect on this fact,

sympathy or concern for all human kind may then lead me to check or

otherwise moderate both natural (retaliatory) resentment and resentment

from the perspective of all humankind.

But precisely for this reason, it is also hard to see how natural

resentment disciplined in this way by sympathy or benevolence, shoulddeserve to be called a sentiment of justice. The concepts of justice and

rights are connected analytically to those of valid claims and the standing

or authority people have to make claims and demands and to hold others

accountable for responding appropriately to them. As we shall appreciate

better in the next section, the most that reflection on costs and benefits

can provide, taken by themselves, are considerations ofdesirability, reasons

to desire certain things for the sake of those who would be benefited or

harmed, not reasons tied conceptually to the legitimacy of claims and

demands. When we reflect on harms and benefits to ourselves, this leads

us to what is desirable for us, and when we reflect on benefits and harms to

all humankind, this leads us to what would be desirable for all humankind.

Nothing has yet been said to put considerations of justice or injustice onto

the map. Where Mills proposal seems to leave us, therefore, is with the

animal desire to retaliate being regulated by a benevolence-driven

psychic process that seems impotent by itself to bring considerations ofjustice even into view.

Strawson, reactive attitudes, and the second-person standpoint

The point I have just been making against Mill is an instance of what I call

Strawsons Point in The Second-Person Standpoint. In his famous essay,

Freedom and Resentment, Strawson argued influentially against

consequentialist compatibilist views that hold that determinism poses no


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threat to practices of moral responsibility since the latter can be fully

justified by their efficacy in regulating behaviour in socially desirable

ways. (Strawson 1968: 72). According to consequentialists like Mill,

punishment is justified by its incentive and deterrence effects, and,

although standard excuses can be given a similar rationale, there is no

corresponding warrant for excusing an act just because it was caused.

Wrongs done in utter ignorance or under extreme duress are

appropriately excused, since punishment under those conditions cannot

deter. But there obviously is no consequentialist justification for treating

determinism as an excuse generally, so determinism poses no threat to

moral responsibility.Consequentialist theories of moral responsibility having the same

shape as Mills are Strawsons target. Against these approaches, Strawson

argues that social desirability cannot provide a justification of the right

sort for practices of moral responsibility as we understand them. (1968:

74) When we seek to hold people accountable, what matters is not whether

punishment is pragmatically desirable, either in a particular case or in

general, but whether an agents action was culpable. Desirability is a reason

of the wrong kind to warrant the attitudes and actions in which holding

someone responsible consists in their own terms. This is Strawsons Point.

Strawsons Point is an instance of the wrong kind of reason problem

(DArms and Jacobson 2000a and 2000b, Rabinowicz and Ronnw-

Rasmussen 2004, Olson 2004, and Hieronymi 2005). Pragmatic

considerations for belief do not make a proposition credible; moral

reasons against being amused do not in themselves undermine a jokes

humor; and considerations of the desirabilitywhether personal, social,or even moralof holding someone responsible do not make his action

culpable. In each case, the right kind of reasons for warranting the

relevant attitude in its own terms must derive from distinctive norms for

attitudes of that kind: for belief, for amusement, and for the attitudes and

actions that are distinctively involved in holding people responsible. It

must be a fact about or feature of an object, appropriate consideration of

which could provide the basis (someones reason) for a warranted attitude


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326 Stephen Darwall

of that kind toward the object. It is impossible to come to believe some

propositionp by reflecting on the fact that it would be desirable to believe

p, (devilishly) impossible to find something unfunny (though possible to

have ones sense of humor stilled) by considering the moral offensiveness

of finding it so, and impossible also to feel guilty or to resent a wrong by

reflecting on the desirability (personal, social, or moral) of having these

feelings.

The general point is that normativity and normative reasons always

concern some specific attitude or other, and reasons that are of the right

kind for one sort of attitude will not generally be so for another. When the

issue is whether someone can warrantedly be held responsible for someaction and resented or blamed, this concerns reasons for resenting or

blaming him, that is, reasons that bear on whether what he did was

culpable and something to which resentment would be a fitting response.

The overall costs and benefits of resenting or blaming him, or of resenting

or blaming acts like his, are reasons for desiring or wishing one could

resent or blame him or warrantedly do so. They cannot show that

resentment and blame are warranted in their own terms, that an act

actually is blameworthy or one to which resentment would be a fitting

response (DArms and Jacobson 2000b).

Strawson coined the term reactive attitude to refer to the mental states

that are distinctively involved in holding people morally accountable,

whether another person, as in indignation, resentment, or moral blame,

or oneself, as in the emotion of guilt. Strawson did not give a formal

definition of these attitudes, but their central features are clear from their

role in his argument about moral responsibility and freedom of the will.Strawsons central idea is that reactive attitudes essentially involve an

interpersonal way of regarding the individuals who are their objects that

commits the holder of the attitude to certain assumptions about the

individual who is their object and the individuals capacities to regulate

her will. Unlike objective attitudes, like disdain, disgust, and annoyance,

reactive attitudes are essentially characterized by involvement or

participation with others in interpersonal human relationships (Strawson


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1968). There is always an essentially interpersonal or second-personal

element to reactive attitudes. Through the attitude we hold its object to

something and thereby implicitly make a demand of him or her. As

Strawson puts the point, the making of the demand is the proneness to

such attitudes (Strawson 1968: 92-93).

The reason that reactive attitudes distinctively implicate freedom of the

will (the main subject of Strawsons essay and argument), then, is that we

can intelligibly address a demand to someone to regulate her will

appropriately only if we suppose that she can so regulate it as a result of

recognizing our demands legitimacy. That is why it is not just unfair, but

not fully coherent in its own terms, to hold very young children or theinsane responsible through reactive attitudes. They are in no position to

answer for themselves or,a fortiori, to regulate their conduct through the

recognition that they are accountable

When we feel reactive attitudes like resentment and blame, we

implicitly address some claim, demand, or expectation to the object of our

attitude. In this way, reactive attitudes do not merely have objects; they

have addressees. (This is what makes them second personal.) But though

reactive attitudes are implicitly directive, they are not merelyor nakedly

so. They purport not to force or overpower the other, but to direct her

with authority by addressing some legitimate claim or demand to her. And

unlike non-reactive attitudes like contempt or the desire to retaliate Mill

calls natural resentment, they call for recognition of the legitimacy of the

demand and the authority that its address presupposes. They come with

an RSVP.

This, again, is a fundamental difference between reactive attitudesthrough which we hold others answerable and honor respect and

contempt, as these function in honor cultures. Honor cultures do not

necessarily involve accountability at all, unless, that is, they are somehow

overlain on an accountability culture.8 The currency of honor cultures is

8 I discuss this difference between honor and accountability cultures and the way differentforms of recognition or respect (honor respect and second-personal respect) mediate them

in Darwall 2008.


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328 Stephen Darwall

deference, honor respect, and contempt, not the essentially second-

personal respect that, as we shall consider in more detail in the next

section, is implicit in reactive attitudes and moral accountability.

Consider the difference between a disdainful rolling of the eyes and a

look that expresses (second-personal) resentment or indignation (looking

daggers). The latter addresses its object in a way that the former does not

and calls for a reciprocally recognizing response. A vivid example is the

staredown that the Italian ice dancer, Barbara Fusar Poli gave her

partner Maurizio Margaglio (thirty-one seconds by one journalists watch)

after Margaglio dropped her during the Ice Dancing competition in the

2006 Winter Olympics. As the Internet edition of the San Diego Union-Tribune had it: Barbara Fusar Poli to partner Maurizio Margaglio: Look

me in the eye and tell me how you dropped me.9 Suppose, however, that

Fusar Poli had contemptuously rolled her eyes after the fall and skated off

in disgust. Any expressive address in that case would most likely have been

to the cognoscenti off stage. Though its object would still have been

Margaglio, it would not necessarily have been addressed to him at all. She

might have been finished with him.

The second-personal character of reactive attitudes also marks a

fundamental difference with the desire to retaliate or get even. Like

contempt, retaliation has no necessary connection to accountability and so

does not involve any implicit presupposition of authoritative demand or

any claim for recognition of that authority. It may be that revenge is

especially sweet when it is at the victims hand, but even then it need not

purport to hold a perpetrator answerable to the victim in the way that

second-personal resentment does.Strawson makes an important distinction within reactive attitudes

between personal and impersonal ones. This can be confusing, since it is

easy to lose track of the fact that all reactive attitudes, even impersonal

ones, must be interpersonal, in Strawsons term, or second personal.

Personal reactive attitudes are those, like resentment and guilt, that are

9 (http://www.signonsandiego.com/sports/olympics/20060220-9999-lz1x20falls.html)


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felt as if from the perspective of a participant in the events giving rise to it

(first or second parties), whereas impersonal reactive attitudes, like

indignation or moral blame, are felt as if from a third partys point of

view. One cannot resent or forgive injuries to people with whom one lacks

some personal connection, but this is no impediment to moral blame or

disapproval. Nevertheless, however impersonal it may be, blame is not an

objective attitude in Strawsons sense. It is just as interpersonal or second

personal as personal reactive attitudes like resentment or guilt.10 It cannot

play its role in Strawsons argument as a reactive attitude unless it is. Thus

although impersonal reactive attitudes are felt as if from the perspective of

a third party, they are not third-personal attitudes in the usual sense;they involve the same second-personal element of implicit address as do

personal ones, only as if from the perspective of a representative person

rather than from any individuals standpoint.11

Personal and impersonal reactive attitudes implicate different

authorities to make the demands they implicitly address. When we feel

moral disapproval or blame towards people for violating a moral

obligation, we implicitly address demands not as individuals, but as

representative persons or members of the moral community and implicitly

demand that those we blame make the same demand of themselves from

the same perspective. When, however, someone has violated a right you

hadagainst him, hence a bipolar obligation he had to you, he has not just

done wronghe has wrongedyou.12 So you have a distinctive individual

standing as the victim to hold him answerable, for example, to resent the

wrong, which you can exercise or not at your discretion. You can seek

10 The same abnormal light which shows the agent to us as one in respect of whom thepersonal attitudes, the personal demand, are to be suspended, shows him to us also as onein respect of whom the impersonal attitudes, the generalized demand, are to be suspended(Strawson 1968)11 Similarly, second personal does not imply second party. Guilt, like any reactive attitude issecond personal, since it involves implicit address, but it clearly is not a second-partyattitude. In feeling guilt, one implicitly addresses a demand to oneself. Finally, any second-personal attitude is also first personal. Address, whether implicit or explicit, is always fromsomeone (an individual (I) or a collective (we)).

12 The term bipolar obligation comes from Thompson 2004.


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330 Stephen Darwall

compensation or not, forgive or not, and so on. No one else has the

standing to do these things, except perhaps to represent you if you have

authorized them or cannot speak for yourself.

We can see this in the traditional distinction between the law of torts

and criminal law. When someone has been wronged, his right violated,

an injury done, then he has standing to bring a tort action; it is up to

him whether to bring it or not. If he would prefer to let bygones be

bygones and is competent to make his own choices, then it is generally

not within others discretion or that of the state to pursue it on his

behalf. The criminal law is different. Whether to prosecute a rights

violation as a crime is not up to the victim alone; it is up to the peopleand their representatives (though they may properly take advice from

the victim on certain matters). Thus criminal law is to torts, as

representative authority is to individual authority, as warranted blame

is to warranted resentment.

The difference between warranted personal and impersonal reactive

attitudes tracks the difference between rights, justice, and (bipolar)

obligations to someone, on the one hand, and moral obligation period, on

the other (Thompson 2004, Darwall 2010a, 2010b). This, again, is the

distinction between wronging someone and doing wrong simpliciter,

between violating a moral obligation to someone and violating a moral

obligation period.

When justice is involved, at least in the sense in which we are

interested, so also are rights and bipolar obligations. Mill states the

orthodox view when he says that justice implies something which it is not

only right to do, and wrong not to do, but which some individual personcan claim from us as his moral right (V.15). According to Hohfelds widely

accepted typology, it is a conceptual truth that (claim) rights entail

correlative (bipolar) obligations (Hohfeld 1923: 65-75). If you have a claim

right that I not step on your foot, it just follows that I am obligated to you

not to step on your foot and that I am distinctively accountable to you for

not doing so, that is, that you have the individual authority to hold me

accountable and make the relevant claims of me.


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Recall now Mills claim that in order for resentment to be really a

moral feeling, it must be responsive to whether the resented act is

blamable (V.22). Mill here glimpses what we might think of as a

conceptual principle of warrant for reactive attitudes, one that is certainly

implicit, if never stated in so many words, in Strawsons Freedom and

Resentment: a personal reactive attitude can be warranted only if the

corresponding impersonal reactive attitude would be warranted also. Your

resentment of me fits what I have done to you only if my stepping on

your foot is also a fit object of blame. If I have a justification or valid

excuse for stepping on your foot, then resentment is less warranted. Of

course, it might still be understandable, or even reasonable under thecircumstances (given human capacities, knowledge, Humean inertia of the

passions, and so on), but it would nonetheless be less fitting (Hume 1978:

441).

It follows that individual authority is constrained by representative

authority. Someone can hold another accountable for something

individually only if the act is the kind of thing that he was morally

obligated not to do period, hence the kind of thing that he is accountable

to the moral community (or representative third parties) not to do.13

Warranted resentment is thus regulated by warranted blame, just as

Mill said. But I hope it is now clear also why I said before that although on

Mills account natural resentment can be moralized only when it is

regulated from the outside, by third-personal sympathy or benevolence,

on a Strawsonian view, reactive attitudes like resentment are appropriately

regulated from materials that are already present within them. Both

personal and impersonal reactive attitudes are second personal in thesense of being felt from a second-person perspective. Personal reactive

attitudes like resentment, felt from a first or second partys vantage point,

and impersonal reactive attitudes like moral blame, felt from a third

13 This oversimplifies somewhat. There are cases where a right is infringed andcompensation owed though without wrongdoing. Nonetheless the following, morecomplex, conceptual connection holds. Someone has a right to something only if acting

against would be wrong, lacking a justification, and then, blameworthy, lacking an excuse.


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332 Stephen Darwall

partys perspective, are equally second personal. Since resentment can be

warranted only if blame is, appropriately regulated or moralized

resentment corresponds with warranted third-party blame, that is, with the

equally second-personal demands that would be made from an impartial

version of the second-person perspective, demands one would make as a

representative person.

Reactive attitudes, respect, and mutual accountability

In this section, I wish to work toward the claim that whereas retaliatory

emotions, and so Mills natural resentment, seek to harm or get back at

their objects, Strawsonian reactive attitudes like resentment andindignation or moral blame, do not. To the contrary, reactive attitudes

express a distinctively second-personal form ofrespect and seek reciprocal

recognition of the dignity, not just of the person holding the attitude, but

also of whomever is (ultimately, of whomever can be) the attitudes objects.

Although I will be relying further on Strawson in this section, I want to

begin by consolidating some points just made in the last section by

considering some ideas of Adam Smiths. We have, actually, already been

making use of a central Smithian idea when we have noted that not all

reasons for an attitude are of the right kind in the sense of bearing on the

issue of whether the attitude is fitting to its object. Smiths term for this

concept of fittingness is propriety. The central normative question for

Smith always concerns whether some attitude, motive, or action is proper,

in the sense of being fitting to its object.

Smith believed that we judge whether this is so by what he called

sympathy (Smith 1982).14 We project ourselves into others shoes, facingthe circumstances they themselves face, to judge whether the attitude,

motive, or action of theirs that we are judging is proper to its object

(viewed as it would be from the perspective of the person into whose shoes

we have placed ourselves). Smiths notion of the impartial spectator is the

idea that we judge this by imaginatively projecting neitheras ourselves, nor

14 I draw here from Darwall 1999 and 2004.


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as the person we are judging, nor indeed, as any other specific individual,

but just as someone who is in the shoes of whomevers attitude, action, or

motive we are judging. If the attitude, motive, or action we come to by this

imaginative exercise corresponds with the one we take the person actually

to have, if wesympathize in this way with the person whose mental state we

are assessing, then we judge his mental state proper in the sense of fitting

to its purported object.

Now back to justice. Injustice, for Smith, is essentially tied to fitting or

proper resentment. It is not simply improper conduct but improper

conduct to which the proper response is a second-personal reactive feeling

to challenge or hold the agent accountable in some way (Smith 1982: 79).So on Smiths view, injustice can be judged only by projecting ourselves

impartially into the agents and, crucially, intoaffected parties points of view

and deliberating out whether to feel resentment from that perspective.

This individual-patient-regarding character of justice leads Smith to

oppose utilitarian tradeoffs and to hold that resistance to injustice is

warranted not by considerations of overall utility but by concern for the

very individual who would be injured. (Smith 1982: 90, 138)

Moreover, what we consider from the standpoint of affected parties is

whether to respond with a distinctive feeling that itself presupposes

mutual accountability between persons, namely, with a Strawsonian

reactive attitude. Sympathy with victims sense of injury involves,

according to Smith, not simply sharing their sense of having been

wronged. It also involves recognition of their authority to challenge the

wrong by resisting it, or, failing that, to demand some form of

compensation or punishment. It recognizes their second-personalauthority to address demands of justice.15 We can only judge whether

something is properly resented or resisted, therefore, by imagining being

in the shoes of the affected parties and considering whether any of us, if

15 Consider in this connection what Smith says about those who feel guilt for havingunjustly injured others. Even when their victims are ignorant of the crime, the guilty maybe moved to confess their guilt and submit themselves to the resentment of their offended

fellow-citizens, in the hopes of some form of reconciliation. (Smith 1982: 118-119.)


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21/28


respect, they also implicitly accord it. To have a reactive attitude towards

someone amounts to continuing to view him as a member of the moral

community, only as one who has offended against its demands (Strawson

1968: 95-96). Reactive attitudes thus do not simply hold the other

accountable, they do so as one to whom the person holding them is

accountable as well, both as a representative person and as an individual.

So second-personal resentment seeks not just to make the other feel ones

dignity, but to feel his as well. The two are a package deal.

Torts and crimes: accountability, not retaliation

In this last section, I would like to extend the second-personal, non-retaliatory analysis of reactive attitudes of the last two sections and

compare it to some recent proposals regarding tort and criminal law,

respectively, that give these attitudes a more retaliatory dimension.

In a line of recent papers, Benjamin Zipursky and his collaborator

John Goldberg have defended a theory of torts they call civil recourse

theory.17 I can hardly lay out civil recourse theory adequately here, not to

mention the debate about the foundations of tort law into which it enters.

The aspect of the theory on which I wish to focus can be presented fairly

quickly, however. Civil recourse theory stands against corrective justice

theories that argue that compensating an injured victim is a matter of

legally enforcing a duty of repair that the tortfeasor has to make her victim

whole (e.g., Coleman 1992). On the latter theories, when someone has

been wronged, an injustice has been done, and the person who committed

the injustice incurs an obligation to compensate the person he has

wronged. Tort law is a legal mechanism through which this duty can belegally enforced.

Against this, civil recourse theory argues, I think, to some extent

correctly, that simply focusing on the correction of an injustice fails

adequately to appreciate the distinctive authority or standing that the

wronged individual has. As I argued above, right holders have an

17 I will focus mainly on Zipursky 2003.


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336 Stephen Darwall

individual authority to hold those who have violated their rights

accountable to them in a way that is not adequately captured by anything

that the people and their representatives can do, even indeed on their

behalf. Although criminal law and prosecution for the wrong or injustice

done are indeed matters for the state and the people from whom it gains

its legitimacy, issues of tort compensation are not. If, again, an injured

party would prefer not to pursue a tort action, it is not up to the state or

the people to pursue it for him. That would be paternalistic, a usurping of

the autonomy rights of the injured party.

However, I believe that civil recourse theory, at least as Zipursky and

Goldberg have developed it, have mislocated the way in which tort lawshould be understood as recognizing the victims standing or authority. As

civil recourse theory conceives it, tort law gives wronged individuals

standing to use force and take vengeance against those who have wronged

them in ways they would otherwise be forbidden to do as private

individuals (Zipursky 2003: 733-735,749-751). Within a community of

mutually accountable equals, as I conceive it, however, individuals never

have the moral standing to retaliate or take vengeance. As private

individuals we do give up a right ofpunishment, which we would otherwise

have had as representative persons, to the state. And we give up also rights

to seek compensation through extra-judicial means. But we never had the

right to vengeance, or to retaliate except to the extent necessary for self-

defense, so the state need provide citizens no legal forum to act against

other private individuals in return for giving up these private rights.

According to Zipursky, however, when claimaints are awarded punitive

damages, tort law gives victims standing to vindicate their rights by beingvindictive and acting in revenge for the wrong done to them by the

defendant (Zipursky 2003: 749-750). This is not quite retaliation, since

victims who prove their case are not permitted to do to the defendant

exactly what he did to them. But civil recourse theory as Zipursky advances

it does nonetheless hold that part of the recourse that tort law gives


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claimants is a kind of revenge.18 On the Strawsonian view I have been

urging, however, accountability to the victim isalways implicitly mutual, so

revenge and retaliation seem precisely the wrong categories for torts, even

for punitive damages.

Similar issues arise in expressive retributivist theories of punishment,

at least as these have been advanced by Joel Feinberg and Jean Hampton.

Since Hamptons views are somewhat more systematic, I shall begin with

her. Hampton rightly points out that crimes having victims always involve

an element of disrespect amounting to a kind of devaluing of the victim

and that punishment is best conceived as a response to, and correction of,

this devaluing. However, as I read her, Hampton conceives of thisresponse in terms that are more appropriate to a culture of honor than to

one of accountability. Those who violate others rights presume a kind of

authority over others. They act towards others as though others have lesser

value and as though, therefore, they can legitimately act towards others in

ways that others cannot legitimately act toward them. They arrogate a

kind of lordship over others and seek to establish this by making others

submit to the indignity involved in their crime (Hampton 1998: 124).

According to Hampton, the retributive idea then is that the appropriate

response to such attempted diminishment and defeat of the victim, is to

turn tables and force the wrongdoers submission, thereby defeating him

and reconfirming or vindicating the victims value. Accordingly,

Hampton says that the most general and accurate definition of

punishment is: the experience of defeat at the hands of the victim (either

directly or indirectly through a legal authority) (Hampton 1998: 126).

As I see it, there are two major problems with this analysis. First, asopposed to torts, criminal punishment is best conceived of as expressing

impersonal rather than personal reactive attitudes, which hold the criminal

accountable not to the victim or to any other individual, but to the moral

community or representative persons as a whole. It is because criminal law

18 However, Zipursky makes clear that his aim is descriptive rather than normative, to

interpret tort law as it actually functions rather than to justify or defend it normatively.


24/28

338 Stephen Darwall

concernsrepresentative rather thanindividualauthority that it is a matter for

the people and their representatives rather than for the victim.

We should agree with Hampton that part of what the moral community

expresses through punishment of victimization is commitment to the

equal dignity of all persons and the victims right as a person not to be

treated in the way she has been treated. But if there is any defeat or

submission here, it should be viewed as a submission to the authority of

the moral community as a whole, not to the victim.

But neither, and this is the second point, is punishment properly

viewed in terms of submission and defeat at all. If the criminal had actually

lowered the victims value and thereby established his superiority over her,in the way that honor disrespect affects relative status in an honor culture,

then it would be necessary to restore her status in some public way. And

since the dishonoring lowering was at the criminals hands, it would be

necessary for a reversal of that defeat and consequent change in relative

status to come somehow at the victims hands. Of course, a public tribunal

might find that the criminals presumptions of superior value are simply

false and thereby simultaneously restore both victims and criminals status

to the status quo ante. But that defies the logic of an honor culture in

which vengeance must be exacted at the hands of the victim or of someone

who represents her.

Such a public dishonoring, however, whether at the victims or the

communitys hands, would not amount to holding the victimizer

answerable. If criminal justice is to express genuine reactive attitudes, like

moral blame, it must implicitly address the criminal in a way that both

demands and expresses a form of respect that, unlike honor respect, isintrinsically second personal. It must demand respect respectfully. So

although it is certainly true that punishment, so conceived, will implicitly

claim the criminals acknowledgment of the victims dignity, it will do so

in a way that acknowledges the criminals dignity as well. Criminal and

victim are persons alike, accountable to one another, both as individuals

and as representative persons or fellow members of the moral

community.


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Feinbergs elaboration of an expressive theory is tied less to vindicating

the victim and more to the expression of the communitys resentment and

vengefulness (Feinberg 1970: 100). Punishment, Feinberg says, is a

symbolic way of getting back at the criminal, expressing a kind of

vindictive resentment (Feinberg 1970: 100). He then quotes with approval

J. F. Stephens celebrated remark that The criminal law stands to the

passion of revenge in much the same relation as marriage to the sexual

appetite (Feinberg 1970: 100-101).

There are no doubt different ways to take Stephens analogy, but, at

best, we seem to be left with the Millian idea that justice and the criminal

law are tied to an animal natural resentment that lacks intrinsic moralrelevance but that can nonetheless be moralised by an external principle

like impartial benevolence. I have been arguing here, however, that there

is a form of resentment that is not a retaliatory emotion. Strawsonian

reactive attitudes, whether personal, like resentment, or impersonal, like

indignation and moral blame, have an inherently second-personal

structure that enables them to be critically revised from within. If an

expressive theory were to hold that punishment expresses these attitudes,

what punishment would then be held to express is what the criminal would

have to accept to hold himself properly accountable to himself and others

as fellow members of the moral community.

Yale University

[email protected]

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