Philosophical Papers Vol. 39, No.

3 (November 2010): 315-341

Justice and Retaliation

Stephen Darwall

Abstract: Punishment and Reparations are sometimes held to express retaliatory emotions whose object is to strike back against a victimizer. I begin by examining a version of this idea in Mills writings about natural resentment and the sense of justice in Chapter V of Utilitarianism. Mills view is that the natural sentiment of resentment or vengeance that is at the heart of the concept of justice is essentially retaliatory, therefore has nothing moral in it, 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 moral blame are understood as Strawson analyzed them, as essentially interpersonal or second personal, 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 accountable community of moral equals. Some implications of this idea are discussed for the expressive theory of punishment and civil recourse theories of torts.

Retribution can be conceived within a theory of just punishment or as retaliation, as in the lex 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, reactive attitudes 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 the Field with their best Force, not only to recover their Wives, but, Lege Talionis, to plunder the Robbers of theirs. (From P. Kolbens The Present State of the Cape of Good Hope, 1731).
ISSN 0556-8641 print/ISSN 1996-8523 online 2010 The Editorial Board, Philosophical Papers DOI: 10.1080/05568641.2010.538913 http://www.informaworld.com

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In Chapter Five of Utilitarianism, 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, the objector 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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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 is a 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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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 is properly 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 honor We 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 is worth 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 selfdefensive 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 feeling eats 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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and status hierarchies. The phenomenon of dominance has been well studied among many species. Failure to resist or retaliate attacks establishes the attackers dominance and lowers the victim in a pecking order. Honor or status functions similarly in an honor culture, though what is at issue there is not simply physical or even psychological power and control. The form that taking someone down a peg assumes in an honor culture, whether or not it involves any physical or psychic attack, is the insult. Retaliating against or avenging insults or injuries, where an injury is quite precisely damage to status or honor, may be as mandatory in an honor culture as is repelling attacks is in a pure power hierarchy. Unavenged insults lower status just as surely as unopposed attacks lower victims power. But humiliation differs from mere submission to greater power. The former is an acknowledgment of lower status within a social drama that has at least the pretense of normativity whereas the latter is like saying Uncle, a signal that one will no longer contest or resist anothers dominating power. Whereas the currency of a dominance hierarchy is naked power, that of a status or honor hierarchy is a kind of recognition or respect. A statusthreatening insult is a form of contempt. It refuses recognition or respect of an objects would-be personain Goffmans terms, her presentation of self (Goffman 1959), and so it threatens the status or social place she wishes to occupy. Status is respected by treating it and the person who occupies it with a deference that helps constitute it. One occupies a given status just in case others treat one as having it. Status is socially constituted or constructed through a kind of recognition we might call honor respect (Darwall 2008). This means that status or honor is not itself a normative, much less a moral, idea. Whether someone or something occupies a given status is a social fact that differs from any normative fact, say, whether she or it deserves or merits honor or is honorable. Even if, therefore, status, or the honor respect that constitutes it, has a normative (de jure) purport or pretense, someones actual status or place within an honor culture is entirely a de facto matter.

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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 secondpersonal, 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, vengeance and 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 resentment Mill argues that when resentment is properly moralized, though, it is 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 secondpersonal element. For extended discussion, see Darwall 2006. 7 That does not mean, of course, that practices that have also been called punishment do not involve something like retaliation. The very term lex talionis shows otherwise. The point is that punishment as a just practice does not involve it.

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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. For someones 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 itself includes 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, and the 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 lead to 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 social practice 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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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, should deserve 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 of desirability, 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 of justice 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 RonnwRasmussen 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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of that kind toward the object. It is impossible to come to believe some proposition p 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 some action 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 the insane 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 merely or 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 attitudes through 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 different forms of recognition or respect (honor respect and second-personal respect) mediate them in Darwall 2008.

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deference, honor respect, and contempt, not the essentially secondpersonal 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 UnionTribune 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 had against him, hence a bipolar obligation he had to you, he has not just done wronghe has wronged you.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 the personal attitudes, the personal demand, are to be suspended, shows him to us also as one in 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 is second personal, since it involves implicit address, but it clearly is not a second-party attitude. In feeling guilt, one implicitly addresses a demand to oneself. Finally, any secondpersonal attitude is also first personal. Address, whether implicit or explicit, is always from someone (an individual (I) or a collective (we)). 12 The term bipolar obligation comes from Thompson 2004.

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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 people and 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 person can 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 the circumstances (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 the sense 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 and compensation owed though without wrongdoing. Nonetheless the following, more complex, 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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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 and indignation or moral blame, do not. To the contrary, reactive attitudes express a distinctively second-personal form of respect 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, facing the 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 neither as 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 we sympathize 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, into affected 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-personal authority 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 having unjustly injured others. Even when their victims are ignorant of the crime, the guilty may be 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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reasonable, would feel a reactive, accountability-seeking sentiment that implicitly lodges some second-personal challenge or complaint and addresses a second-personal reason to respect this challenge. It is worth noticing now that, as with the Strawsonian framework we were exploring in the last section, Smiths account of resentments role in judgments of justice differs fundamentally from Mills account of the moralization of resentment. For Smith, as for Strawson, whether resentment is warranted cannot be settled by looking to considerations of overall benefit and harm to which third-personal benevolence responds. It must rather be judged from within a second-person standpoint, in Smiths case, an impartial version of the perspective of the persons affected by an action, and for Strawson, the second-person perspective of a representative person. My main reason for introducing Smith in this section, however, is to set up a central Strawsonian point concerning the way in which reactive attitudes mediate relations of mutual respect and accountability, and so differ from the desire for retaliation or revenge. Smith is not entirely consistent on this point.16 Sometimes he uses resentment for a retaliatory emotion, but there is a quite arresting passage where he makes the Strawsonian point.
[What] resentment is chiefly intent upon, is not so much to make our enemy feel pain in his turn, as to make him sensible that the person whom he injured did not deserve to be treated in that manner (Smith 1982: 95-96).

As a reactive attitude, resentment responds to failures to respect the resenters legitimate claims and demands and seeks recognition of his authority. It seeks to make the other feel the victims dignity and seeks also the others acknowledgement of this and of his prior failure to do so in his conduct, as well as the others taking responsibility for this failure. This of course fits with the general Strawsonian analysis of reactive attitudes in terms of accountability. Strawson makes a further point, namely, that reactive attitudes like resentment do not simply claim
16 For discussion, see Darwall 2010c.

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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, nonretaliatory 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 be legally 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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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 law should 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 of punishment, 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 selfdefense, 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 being vindictive 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 is always 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 this response 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, as opposed 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.

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concerns representative rather than individual authority 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, is intrinsically 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 moral relevance 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 stephen.darwall@yale.edu References Coleman, Jules L. (1992). Risks and Wrongs. Cambridge: Cambridge University Press. Crisp, Roger (1997). Routledge Philosophy Guidebook to Mill on Utilitarianism. New York: Routledge. DArms, Justin and Daniel Jacobson (2000a). The Moralistic Fallacy: On the Appropriateness of Emotions, Philosophy and Phenomenological Research, 61: 65-90.

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DArms, Justin and Daniel Jacobson (2000b). Sentiment and Value, Ethics 110: 722-748. Darwall, Stephen (1999). Sympathetic Liberalism, Philosophy & Public Affairs, 28: 139-164. Darwall, Stephen (2006). The Second-Person Standpoint: Morality, Respect, and Accountability. Cambridge, MA: Harvard University Press. Darwall, Stephen (2004). Equal Dignity in Adam Smith, Adam Smith Review 1: 129-134. Darwall, Stephen (2008). Two Kinds of Recognition Respect for Persons. Trans. into Italian as Due tipi di rispetto come riconoscimento per le persone. In Eguale Rispetto, Ian Carter, ed. Bruno Mondadori, Milan. Darwall, Stephen (2010a). But It Would Be Wrong, Moral Obligation, Ellen Frankel Paul, ed. Cambridge: Cambridge University Press. Darwall, Stephen (2010b). Moral Obligation: Form and Substance, Proceedings of the Aristotelian Society. Darwall, Stephen (2010c). Smiths Ambivalence About Honor, Adam Smith Review 5. Feinberg, Joel (1970). The Expressive Function of Punishment. In Doing & Deserving: Essays in the Theory of Responsibility. Princeton, NJ: Princeton University Press. Pp. 95-118. Gofman, Erving (1959). The Presentation of Self in Everyday Life. New York: Anchor Books. Hampton, Jean (1998). The Retributive Idea, in Jeffrie G. Murphy and Jean Hampton. Forgiveness and Mercy. Cambridge: Cambridge University Press. Hieronymi, Pamela (2005). The Wrong Kind of Reason, The Journal of Philosophy, 102: 437-457. Hohfeld, Wesley Newcomb (1923). Fundamental Legal Conceptions, Walter Wheeler Cook, ed. New Haven, CT: Yale University Press. Hume, David (1978). A Treatise of Human Nature, ed L. A. Selby-Bigge, second edition, with revisions by P. H. Nidditch. Oxford: Oxford University Press, 1978. Mill, John Stuart (1998). Utilitarianism, ed. Roger Crisp. Oxford: Oxford University Press.

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Nietzsche (2006). On the Genealogy of Morals and Other Writings: Revised Student Edition. Keith Ansell-Pearson, ed. Carol Diethe, trans. Cambridge: Cambridge University Press. Olson, Jonas (2004). Buck-Passing and the Wrong Kind of Reasons, The Philosophical Quarterly, 54: 295-300. Rabinowicz, Wlodek and Toni Ronnw-Rasmussen (2004). The Strike of the Demon: On Fitting Pro-Attitudes and Value, Ethics, 114: 391-423. Scheler, Max (1961). Ressentiment. Lewis A. Coser, ed. William W. Holdheim. trans. New York: Free Press of Glencoe. Strawson, P.F. (1968). Freedom and Resentment, in Studies in the Philosophy of Thought and Action. London: Oxford University Press. Thompson, Michael (2004). What Is It To Wrong Someone?: A Puzzle About Justice, In Reason and Value: Themes from the Philosophy of Joseph Raz, eds., R. Jay Wallace, Philip Pettit, Samuel Scheffler, Michael Smith. Oxford: Oxford University Press. Watson, Gary (1987). Responsibility and the Limits of Evil: Variations on a Strawsonian Theme, in Responsibility, Character, and the Emotions: New Essays in Moral Psychology, ed. F. D. Schoeman. Cambridge: Cambridge University Press. Zipursky, Benjamin (2003). Civil Recourse, not Corrective Justice, Georgetown Law Journal 91: 695-756.

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