Beth Valentine: Punishment, Consent, the Non-Identity Problem, and more…

 

Valentine picture

This month we are interviewing Beth Valentine. Beth has recently completed her doctoral degree in Philosophy at Rutgers University – her dissertation was entitled ‘Pseudo-Consents: What They Are and What They Aren’t’. She is now a Post-Doctoral Fellow at the Roger Mudd Center for Ethics (Washington and Lee University).

What brought you to philosophy? And why did you start working on legal/moral philosophy?

Beth: I took my first philosophy course because it was one of the few classes that still had space available and fit my schedule. I stayed with philosophy because I enjoyed it. I enjoyed the questions that were raised and the methodology used to engage with them; I enjoyed the challenges of critiquing arguments and the creative process of coming up with one’s own defense of a position. Eventually I decided to pursue a career in a philosophy because I realized two things: (1) I was more passionate about philosophy than any other field, and (2) I thought the work was important. Broadly, philosophy teaches us how to be critical thinkers. The world needs more of this.

Within philosophy I was drawn to ethics because it focuses on (some of) the most important questions we can ask: How should we treat others? What is right? What is good? What should we do and how should we be?

My interest in the law expanded from these questions; I view the part of philosophy of law I am interested in as an extension of applied ethics. It asks what the State can permissibly do to others in the context of punishment and criminalization. Specifically, I am interested in what justifies the State in inflicting punishment and what the State can permissible prohibit on threat of punishment. With regards to the latter, I have focused on the de minimis defense, exploring how it can mitigate the reasons to inflict punishment.

I am interested in torts for similar reasons. Here, the question is what we can demand of others via the civil legal system. Though I hope to explore the broad questions about the purpose of tort law, I also think philosophical work can be useful in determining the more technical applications of law. For example, one of my works in progress explores how possible world semantics can be applied to cases of alleged preemptive overdetermination.

You’ve mentioned the justification of State’s punishment. You are sympathetic to retributivism, aren’t you?

Beth: Yes, I am. At a minimum, I think that a person’s wrongdoing is necessary for the State’s infliction of punishment to be justified. I am also inclined to think that a person’s wrongdoing provides the State with a (defeasible) reason to inflict punishment and that an expressive theory of retribution (e.g. something in the family of Jean Hampton’s view) provides the best explanation of why this reason exists.

How about your work on consent?

Beth: My work on consent draws upon both philosophy of law and ethics. I started working on this topic because I noticed a practice in the law – constructive consent – was morally problematic. Specifically, I thought the legal fiction lacked a normatively important resemblance to consent and so misappropriated consent’s name and legitimacy. The project then expanded to include an examination of other forms of alleged fictitious consents and their role in moral and legal issues, ranging from the non-identity problem in population ethics to issues of informed consent to the legal doctrine of assumption of risk.

You’ve mentioned the non-identity problem. Can you tell us a little bit about the connection between this problem and consent?

Beth: Of course! The Non-Identity Problem involves some action that, if done, would cause specific people to exist and also cause those same people pain and suffering which exceeds the normal bumps and bruises of typical life. The common intuition is that when there are alternative permissible actions available, causing the pain and suffering is wrong. The problem arises when trying to articulate why this action is morally wrong. Consider the following case (adapted from from Liza Mundy’s Washington Post article “A World of Their Own”): A couple decided to conceive through artificial insemination. They selected a blind sperm-donor to increase the chances that their children would be as well. They had two children – Jehanne and Gauvin – who are both blind. There is every reason to believe that these kids will have lives worth living even with their condition. Though there is some debate about whether it is wrong to increase one’s chances of conceiving a child with a disability; many claim that the parents acted wrongly. Specifically, the common intuitive response is that they acted wrongly because they harmed their children. However, Jehanne and Gauvin aren’t made worse off than they otherwise would have been. If their parents hadn’t have used that specific sperm-donor, then neither child would have existed. This, then, is the general puzzle: how can the action be wrong when no one is worse off because of it?

To explain the wrongness of choosing this type of action, Derek Parfit presents an impersonal account that claims the action is impermissible solely because it brings about a particular state of affairs. To return to the case above, choosing the blind sperm-donor was wrong not because it caused Jehanne or Gauvin (or even society writ large) to be in negative states but because it created a world that was worse than it otherwise could have been. His account thus rejects a person-affecting explanation of morality (or, at least that part of morality concerned with human well-being and beneficence). Since Parfit’s introduction of the problem, many have resisted his conclusion that a person-affecting account cannot solve the Non-Identity Problem; they instead assert that the action is wrong because of the harm or wrong done to individuals. However, hypothetical individualized consent undermines these solutions. Their person-affecting conclusions aren’t warranted because – in some cases – it is appropriate to impute consent to the future individuals. This imputation negates the normative weight of the person-affecting reasons against choosing the alleged impermissible action.

 Moving on to a different topic: What do you think about the current state of moral and legal philosophy? Do you see legal and moral philosophy as doing some sort of progress? Are there any topics philosophers have focused on or approaches they have taken that you think are particularly misguided or somehow unfruitful? 

Beth: I do think legal and moral philosophy are making progress. There are some areas of agreement now, and areas of agreement on what topics are important and worth consideration. Regarding future consensus, I quote Derek Parfit: “Non-Religious Ethics is at a very early stage. We cannot yet predict whether, as in Mathematics, we will all reach agreement. Since we cannot know how Ethics will develop, it is not irrational to have high hopes.” (Parfit, Reasons and Persons, 454)

Occasionally I think some philosophers engage in merely semantic arguments which don’t further the field at all. For example, is non-coercive consent not consent at all, or is it merely invalid consent? Is autonomy X, or is it Y (is Y authenticity and not autonomy)? For these arguments, I don’t think it really matters much what we call X or Y or how we attach labels. What matters is the substance of the concept; call it whatever you like, and then see what follows from the substance itself.

I also think that over-reliance on thought experiments and intuitions can be harmful. I don’t go as far as some in thinking that they should be jettisoned all together, but I do think that some philosophers fall into a not-helpful pattern of proposing theory X, pointing to a bizarre scenario S, relying on their own intuitions about S, and then taking that as sufficient proof of X. Such a methodology, at a minimum, leaves anyone who has different intuitions from the author without any understanding of why X might be plausible.

If you had the chance to talk to your past-self before pursuing an academic career in philosophy, what kind of advice would you have given to your past -self? And do you have any advice to those who are starting or considering to start a career/grad school in philosophy?

Beth:

  • To my past self and others: Be sure to have balance in your life! Take time to do things outside of philosophy that you enjoy.
  • To others: If you go to graduate school in philosophy, do so because you love philosophy and would be content spending the next 5-7 years doing it for little to no profit.

What do you do when you are not doing philosophy? Any hobbies?

Beth: I enjoy reading fiction, particularly science fiction, and playing games (mostly video games, but also board games and card games).

To finalise, could you list three philosophy books that have influenced your thinking and work and briefly explain why they have done so? And could you also recommend two of your favourite non-philosophy books and briefly tell us why we should read them?

Beth:

  • Kant, Groundwork of the Metaphysics of Morals
    • I’m not really sure how to explain the influence of this book on my own work. Among other impacts, I think my focus on the normative importance of autonomy goes back to this work, even if I use a slightly different account of autonomy than Kant does.
  • Derek Parfit, Reasons and Persons
    • This book is so rich; it would be extremely difficult to overestimate the impact it has on philosophy as a field. For me in particular, its work on population ethics and the non-identity problem was heavily influential in both my thesis and dissertation. The earlier work attempted to propose a solution to the non-identity problem, and the latter applied my work on hypothetical consent to it, engaging with the philosophers coming after Parfit who defend a person-affecting solution. More broadly, the originality of this work gave me hope that new, big innovations are still being made in philosophy.
  • Jeffrie Murphy and Jean Hampton, Forgiveness and Mercy
    • Jean Hampton’s expressive theory of retribution has greatly influenced my own views of the justification of punishment, and this book was my first introduction to that theory. Though I don’t fully endorse her theory, I do think something in this vein is the most plausible version of retributivism.
  • Orson Scott Card, Speaker for the Dead trilogy (I know its technically three books, but I’m counting it as one)
    • I enjoyed how it explored otherness and personhood, as well as how it built upon the characters from Ender’s Game.
  • Ann Lecki, Ancillary Justice
    • A great book for issues of personhood, AI, and personal identity. She’s also an excellent writer.
  • Honorable Mention: John Scalzi, Old Man’s War: he’s a great writer, and the book is an enjoyable read. It also has some cool stuff about personal identity (though less interesting than the two books above).