Let’s forget about forfeiture

ABSTRACT

The forfeiture thesis is posed as an independent thesis in moral philosophy according to which agents forfeit (or lose) rights if they perform certain act-types. According to many, this thesis plays a crucial role in the justification of (legal) punishment. In this paper, I argue that the forfeiture thesis is unnecessary – we can simply dismiss it without any substantive loss. Echoing an aspect of the specificationist approach to rights, the reason is that we may replace the forfeiture thesis with an exception clause in the very content of the right not to be subjected to hard treatment: P has no right not to be subjected to hard treatment simpliciter, but a right not to be subjected to hard treatment unless P performs an act-type φ – e.g., murdering an innocent person. This alternative has substantive advantages over the forfeiture thesis, which, in turn, shows that the former cannot be reduced to the latter.

Acknowledgments

I wrote an early draft of this manuscript while I was a visiting researcher at University College London in 2023 with the support of the Santander Scholarship. I give special thanks to Jeffrey Howard and Saladin Meckled-García for all the discussions we had during that wonderful period. An early version of this manuscript was presented at the CJV Visiting Speaker seminar (Trinity College Dublin) and the seventh PPE annual meeting. I thank all participants for their valuable feedback. I am very grateful to Giulio Fornaroli, Jesse Spafford, Adina Preda, Pietro Intropi, Lauren Lyons, Ezequiel Spector, José Tomás Rutten and three anonymous reviewers for helping me to improve different aspects of my manuscript. Finally, I want to thank my students of the master’s course ‘Ethics and Society’ as I clarified many ideas on forfeiture with them. This article is an outcome of a national grant of the Chilean ANID, Project Fondecyt Iniciación 11230361.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 John Locke, Second Treatise of Government (first published 1689, Cambridge University Press 1980).

2 Chloe Kim, 'Buffalo shooting: Relative lunges at gunman before sentencing' BBC News (16 February 2023) <https://www.bbc.com/news/world-us-canada-64655018>.

3 For classic accounts of punishment that explicitly assume FT, see: William David Ross, The Right and the Good (Clarendon Press 1930); Alan H Goldman, 'The Paradox of Punishment' (1979) 9 Philos Public Aff 42; Locke, Second Treatise of Government (n 1); Igor Primoratz, Justifying Legal Punishment Studies in Applied Philosophy (Humanities Press International 1989); Immanuel Kant, The Metaphysics of Morals (first published 1797, Cambridge University Press 1991); Christopher W Morris, 'Punishment and Loss of Moral Standing' (1991) 21 Can J Philos 53. More recently, Christopher Wellman, Rights Forfeiture and Punishment (Oxford University Press 2017) is the most prominent example of this tradition. For discussions on FT, see: Diana Meyers, Inalienable Rights (Columbia University Press 1985); Judith Thomson, The Realm of Rights (Harvard University Press 1990); John Simmons, 'Locke and the Right to Punish' (1991) 20 Philos Public Aff 311; Rex Martin, A System of Rights (Oxford University Press 1993); Terrance McConnell, Inalienable Rights: The Limits of Consent in Medicine and the Law (Oxford University Press 2000); Richard L Lippke, 'Criminal Offenders and Right Forfeiture' (2001) 32 J Soc Philos 78; David Rodin, War and Self-Defense (Oxford University Press 2002); Morton Winston, 'The Death Penalty and the Forfeiture Thesis' (2002) 1 J Hum Rights 357; David Boonin, The Problem of Punishment (Cambridge University Press 2008); Christopher Wellman, 'The Rights Forfeiture Theory of Punishment' (2012) 122 Ethics 371; David Rodin, 'The Reciprocity Theory of Rights' (2014) 33 Law Philos 281; Massimo Renzo, 'Rights Forfeiture and Liability to Harm' (2017) 25 J Political Philos 324.

4 For example, Goldman (n 3) holds that FT is necessary but not sufficient: ‘When a person violates rights of others, he involuntarily loses certain of his own rights, and the community acquires the right to impose a punishment, if there is a social benefit to be derived from doing so’ (44); for a similar view, see: Morris (n 3). Contrary to this position, Wellman argues that FT is sufficient to punish an agent, see: Wellman, Rights Forfeiture and Punishment (n 3). For examples of the definition of punishment I assume along this manuscript, see: Joel Feinberg, 'The Expressive Function of Punishment' in Antony Duff and David Garland (eds), A Reader on Punishment (Oxford University Press 1994); HLA Hart, 'Prolegomenon to the Principles of Punishment' in HLA Hart (ed), Punishment and Responsibility: Essays in the Philosophy of Law (Oxford University Press 2008); Wellman, Rights Forfeiture and Punishment (n 3). It should be noted that even though imprisonment is widely accepted as a paradigmatic example of hard treatment, it may be argued that there are other measures that can have a similar impact on agents. For example, see: Hadassa Noorda, 'Imprisonment' (2023) 17 Crim Law Philos 691.

5 Goldman (n3) 43. Morris’s (n 3) classic account is another example of this standard view: ‘I shall defend a type of forfeiture theory, one according to which part (but only part) of the justification for punishment rests in the fact that wrongdoers lack certain rights, the presence of which would normally suffice to block the appropriate punishment’ (63; see also: Simmons (n 3)). More recently, Howard suggests that ‘any deontological justification of punishment must include an explanation of why the criminal offender has forfeited her right against the penal treatment’ (52), see: Jeffrey Howard, 'Punishment as Moral Fortification' (2017) 36 Law Philos 45. Even though Quinn criticises FT, he notes this argument by saying: ‘If criminals fully retained their ordinary rights to liberty, life and property, these rights would (…) raise a morally decisive barrier against punishment, in which case it would violate them’ (53), see: Warren Quinn, 'The Right to Threaten and the Right to Punish' in Warren Quinn (ed), Morality and Action (Cambridge University Press 1993). The same applies to RA Duff, Punishment, Communication, and Community (Oxford University Press 2001) 15: ‘This like of thought [the standard view] is indeed tempting. (…) [I]f we are to justify criminal punishment, we must justify actions that normally violate rights’. Boonin (n 3) criticises punishment, but he notes this classic argument is quite plausible: ‘So, the problem of punishment becomes the problem of understanding how it can be morally permissible for the state to treat offenders in ways that typically involve violating people’s rights. Once the question is framed in this way, the requirements for a successful solution become fairly clear. For punishment to be morally permissible, offenders must no longer have some of the rights that they had as non-offenders’ (104–5). Note that Goldman (n 3) assumes that if we morally justify punishing P in certain circumstances, we show that it is morally permissible to punish P in those circumstances. I assume the same view in this paper.

6 Russ Shafer-Landau, 'Specifying Absolute Rights' (1995) 37 Ariz Law Rev 209; John Oberdiek, 'Specifying Rights Out of Necessity' (2008) 28 Oxf J Leg Stud 127; Ariel Zylberman, 'Moral Rights Without Balancing' (2022) 179 Philos Stud 549.

7 Immanuel Kant, The Critique of Pure Reason (first published 1781/1787, Humanities Press 1950); Alan Baker, 'Simplicity' The Stanford Encyclopedia of Philosophy (29 October 2004) <https://plato.stanford.edu/archives/sum2022/entries/simplicity/>.

8 Henry Richardson, 'Specifying Norms as a Way to Resolve Concrete Ethical Problems' (1990) 19 Philos Public Aff 279; TM Scanlon, 'Intention and Permissibility' (2000) 74 Aristot Soc Suppl Vol 301; Heidi M Hurd and Michael S Moore, 'The Ethical Implications of Proportioning Punishment to Deontological Desert' (2021) 15 Crim Law Philos 495.

9 Renzo (n 3).

10 Wellman, 'The Rights Forfeiture Theory of Punishment' (n 3).

11 Goldman (n 3); Kant (n 3); Lippke, 'Criminal Offenders and Right Forfeiture' (n 3); Locke (n 3); Martin (n 3); Morris (n 3); Simmons (n 3); Primoratz (n 3); Ross (n 3); Wellman, 'The Rights Forfeiture Theory of Punishment' (n 3); Wellman, Rights Forfeiture and Punishment (n 3); Winston (n 3).

12 Regarding the point that it is an open question which rights agents may lose, consider the classic debate on capital punishment. Ross (n 3) famously suggests that ‘the offender, by violating the life (…) of another, has lost his own right to have his life (…), so that the state has no prima facie duty to spare him, as it has a prima facie duty to spare the innocent’ (60–1). Similarly, Pojman holds that ‘by violating the right of another to life, I thereby forfeit my right to life. (…) This criminal in murdering the innocent victim has made himself vulnerable to the state’s authority to use the sword in behalf of justice’, see: Louis Pojman, 'For the Death Penalty' in Louis Pojman and Jeffrey Reiman (eds), Death Penalty: For and Against (Rowman & Littlefield 1998) 30. However, other authors suggest that even if FT is true, murderers do not forfeit their right to life (see: Hugo Bedau, 'Capital Punishment' in Hugh LaFollette (ed), The Oxford Handbook of Practical Ethics (Oxford University Press 2005); Boonin (n 3)). There are other, less classic, debates on which rights agents may lose. For example, Lippke suggests that even though it may be argued that convicted legal offenders forfeit certain rights, they do retain the moral right to control their labour, and that paid labour should be facilitated for offenders by the state, see: Richard L Lippke, 'Prison Labor: Its Control, Facilitation, and Terms' (1998) 17 Law Philos 533. For a more recent analysis of the debate on whether the state may deny, on the basis of the forward-looking aim of protecting the public, ex-offenders of certain liberties, opportunities, or access to some social goods, see: Richard L Lippke, 'Punishment, Public Safety, and Collateral Legal Consequences' (2023) J Appl Philos. doi:10.1111/japp.12653.

13 McConnell (n 3).

14 Thomson (n 3).

15 Jeff McMahan, 'Proportionate Defense' (2014) 23 J Transnatl Law Policy 1.

16 Thomson (n 3).

17 Joel Feinberg, 'Voluntary Euthanasia and the Inalienable Right to Life' (1978) 7 Philos Public Aff 93 230.

18 Wellman, 'The Rights Forfeiture Theory of Punishment' (n 3) 376.

19 Boonin (n 3) 215.

20 Winston (n 3) 365; see also: Bedau (n 12).

21 Renzo (n 3) 324.

22 Boonin (n 3) 106.

23 e.g. Thomson (n 3); Michael Zimmerman, The Concept of Moral Obligation (Cambridge University Press 1996).

24 Shafer-Landau (n 6); Oberdiek, 'Specifying Rights Out of Necessity' (n 6); Zylberman (n 6).

25 Leif Wenar, 'Rights' The Stanford Encyclopedia of Philosophy (19 December 2005) <https://plato.stanford.edu/archives/spr2021/entries/rights/>.

26 Cristián Rettig, 'Rights and Practical Reasoning: A Practical View on the Specificationism vs Generalism Debate' (2023) J Value Inq. doi:10.1007/s10790-023-09946-5.

27 Zylberman (n 6) 4.

28 Shafer-Landau (n 6) 210.

29 Rettig (n 26).

30 For example, the Constitution of Switzerland (1999, rev. 2014), holds that ‘[a]ny person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success’ (Art. 29, 3), the Constitution of Denmark (1953) holds that ‘[a]ny person who has a right to vote at Folketing elections shall be eligible for membership of the Folketing, unless he has been convicted’ of certain acts (Art. 30, 1), and the Constitution of Norway (1814, rev. 2016) states that there is a right to freedom of expression ‘unless’, for example, censorship is ‘required in order to protect children and young persons’ (Art. 100). The same can be found in existing human rights practice. For example, we all have a right to freedom of movement unless in times of public emergency (ICCPR, Art. 4), and we all have a right to freedom of expression unless we put in danger the public order (ICCPR, Art. 19).

31 Joseph Raz, The Morality of Freedom (Clarendon Press 1986).

32 Richardson (n 8); Scanlon, 'Intention and Permissibility' (n 8); Hurd and Moore (n 8).

33 Rettig (n 26).

34 This possibility is explored further by Hallie Liberto, 'The Moral Specification of Rights: A Restricted Account' (2014) 33 Law Philos 175. In her own words, ‘I argue for the Restricted Account of the moral specification of rights, which stakes out a middle-ground’ in the classic debate between the pro-tanto view and specificationism’ (1).

35 I do not assume that the exception clause specifies an indefinite number of fully specified actions, but a limited number of act-types. I shall return to this later.

36 John Finnis, Natural Law and Natural Rights (Clarendon Press 2011) 219.

37 John Oberdiek, 'Specifying Constitutional Rights' (2010) 27 Const Comment 231 232.

38 Grégoire Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge University Press 2009) 136–37.

39 Ibid; Finnis (n 36).

40 see: Oberdiek (n 37).

41 Note that the proposal I provide is also different from Tadros’ influential account on liability, see: Victor Tadros, The Ends of Harm (Oxford University Press 2011). According to Tadros, ‘punishment is justified in virtue of obligations that offenders owe, primarily to victims, and derivatively to other people in virtue of having violated their primary duty not to wrongfully harm others’ (ibid 266). The point I make does not assume such an account. Furthermore, it should be noted that Tadros’ theory tends to avoid the language of rights. This is clear in different parts of his text in which he says that rights do not provide the best approach to punishment (see: ibid 200–15). It should also be noted that there are other objections to FT in the literature. For example, Grabczynska and Ferzan criticise Leverick by arguing that even though FT is crucial for her account of self-defence, the ‘critical problem with Leverick’s argument is her failure to justify forfeiture, the backbone of her theory’ (237), see Arlette Grabczynska and Kimberly Kessler Ferzan, 'Justifying Killing in Self-Defence' (2009) 991 J Crim Law Criminol 235; Fiona Leverick, Killing in Self-defence (Oxford University Press 2006). In the case of my argument, it is not about the lack of justification of FT, but rather about its unnecessary character in theory of punishment.

42 Kant, The Critique of Pure Reason (n 7) 538–39.

43 Baker (n 7).

44 Two clarificatory points are necessary. First, in this passage I assume well-known aspects of Raz, such as the idea that there are reasons that can be cancelled by cancelling reasons, see Joseph Raz, Practical Reason and Norms (Oxford University Press 1999). Second, the sentence ‘after killing an innocent person for fun, P loses his right because of what the very content of his right specifies’ implies that there is what may be called a ‘transition’ from (i) the normative situation regarding P before P commits such an act to (ii) P’s normative situation after committing such an act. The key aspect behind this transition is not only P’s act but also the content of P’s right, which contains an exception clause (as argued in this section, there are strong reasons to hold that rights such as P’s right may contain these clauses). As the example suggests, the conjunction of both elements removes an obligation on Q regarding P and, therefore, generates a liberty on Q regarding P. Echoing Lang, my point is that P’s right not to be subject to hard treatment is held to persist only for as long as P satisfies certain conditions, which imply that P does not kill someone for fun (something specified in the exception clause of P’s right), see Gerald Lang, 'Why Not Forfeiture?' in Helen Frowe and Gerald Lang (eds), How We Fight: Ethics in War (Oxford University Press 2014) 40. That said, it could be argued that while all of this is an important part of the story to explain the normative transition, it is not exhaustive because it is relevant to incorporate, for example, an explanation of the ‘moral relationship’ between P and the innocent person (ibid 58), or an account of the value of reciprocity Duff (n 5). Note, however, that an exhaustive explanation of this transition goes beyond the scope of this paper and, more importantly, the lack of a full explanation is not problematic for the purposes of this manuscript, the target of which is solely the standard view endorsing FT – after all, as Lang ((n 44), 51) notes, conventional accounts that assume FT do not offer a full story on how that transition proceeds. Furthermore, the lack of an exhaustive story does not entail that what my example describes is a dispensable ingredient of the overall story.

45 I explore this in Cristián Rettig, 'The Claimability Condition: Rights as Action-Guiding Standards' (2020) 51 J Soc Philos 322.

46 Webber (n 38) 6.

47 Webber argues that exception clauses are limitations that should be understood as part of the very content of rights. For example, he suggests that without exception clauses that limit the normative scope of rights, rights are too indeterminate to be relevant in practical discourse and reasoning, see: Weber (n 38) 124–25.

48 Richardson (n 8); Scanlon (n 8).

49 Scanlon suggests that his own approach to morality assumes that ‘plausible moral principles do not merely state general requirements but also incorporate exceptions to these requirements’, see: Scanlon (n 8) 310. I do not assume Scanlon’s contractualism in this paper, but I do agree with his general view on specifying principles.

50 Hurd and Moore (n 8) 509.

51 Richardson (n 8).

52 Michael DePaul, Balance and Refinement: Beyond Coherence Methods of Moral Inquiry (Routledge 1993) 18; TM Scanlon, 'Rawls on Justification' in Samuel Freeman (ed), The Cambridge Companion to Rawls (Cambridge University Press 2003) 144.

53 Following Daniels, the point is that principles explain intuitions if they ‘capture’ (sometimes he says, ‘match’, ‘fit’, or ‘systematise’) our convictions on cases, including hard cases, see: Norman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (Cambridge University Press 1996) 2, 7, 22, 27.

54 For an analysis of this point, see: Shelly Kagan, Normative Ethics (Routledge 1998); Larry Alexander and Michael Moore, 'Deontological Ethics' The Stanford Encyclopedia of Philosophy (21 November 2007) <https://plato.stanford.edu/archives/win2021/entries/ethics-deontological/>. For an example of an argument based on moderate deontology, see Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books 1977) 259.

55 Hillel Steiner, 'Directed Duties and Inalienable Rights' (2013) 123 Ethics 230.

56 Shafer-Landau (n 6) 212.

57 Liberto (n 34).

58 Kershar criticises the proliferation of exceptions that must be built into rights, as well as the thesis that rights are mere conclusions of practical reasoning, see: Stephen Kershnar, 'The Structure of Rights Forfeiture in the Context of Culpable Wrongdoing' (2002) 29 Philosophia 57. My view avoids these issues for the reasons provided in this section. Regarding standard specificationism, it entails that rights are all-things-considered conclusions, but it denies the unlimited proliferation of exceptions. See: Shafer-Landau (n 6).

59 Michael S Moore, 'Justifying Retributivism' (1993) 27 Isr Law Rev 15.

60 I borrow this expression from Moore, who suggests that agents may lose rights ‘to achieve retributive justice’, but without anticipating the proposal I make in this manuscript, see: (ibid 34).

61 Benjamin Ewing, 'The Political Legitimacy of Retribution' (2015) 34 Law Philos 369 (369; also: 373, 385).

62 Ibid 389; Moore (n 59).

63 I have mentioned an aspect of Ewing’s objection to retributivism in this passage. Of course, there are other significant critiques. For example, it is argued that any satisfactory justification of punishment is intrinsically related to an account of state authority – something that retributivism would not consider seriously, see: Michael Philips, 'The Justification of Punishment and the Justification of Political Authority' (1986) 5 Law Philos 393; Malclom Thorburn, 'Punishment and Public Authority' in Antje Du Bois-Pedain, Magnus Ulväng and Petter Asp (eds), Criminal Law and the Authority of the State (Hart Publishing 2017). This objection to retributivism is substantive, but my aim in this manuscript is neither to defend that view, nor to offer an exhaustive theory of punishment.

64 Wellman, Rights Forfeiture and Punishment (n 3) 25.

65 From the fact that typical imprisonment is a clear instance of hard treatment, it does not follow that there are no other possibilities. For a recent exploration of a continuum of state measures that imply alternative forms of hard treatment, such as open prisons and periodic imprisonment, see: Noorda (n 4).

66 After presenting his critique, Renzo says: ‘This is not to say that forfeiture has no role to play in the philosophical debates on the justification of punishment (…)’, see: (n 3) 332.

67 Renzo (n 3) 332, 334–35.

68 Thomson (n 3).

69 E.g., Simmons (n 3); Wellman, 'The Rights Forfeiture Theory of Punishment' (n 3).

70 Andrew von Hirsch, Past or Future Crimes (Rutgers University Press 1985); Andrew Von Hirsch, 'Proportionality in the Philosophy of Punishment' (1992) 16 Crime Justice 55; Duff (n 5).

71 Von Hirsch, 'Proportionality in the Philosophy of Punishment' (n 70), see also: Youngjae Lee, 'Proportionality in Punishment' in Larry Alexander and Kimberly Kessler Ferzan (eds), The Palgrave Handbook of Applied Ethics and the Criminal Law (Springer 2019).

72 Von Hirsch, 'Proportionality in the Philosophy of Punishment' (n 70) 77.

73 see: Andrew Ashworth and Rory Kelly, Sentencing and Criminal Justice (Bloomsbury 2021).

74 McMahan (n 15).

Additional information

Funding

National grant of the Chilean ANID, Project Fondecyt Iniciación 11230361.