I’m reading the book Ill-gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law by Leo Katz, and so far the book has been an interesting exploration of the question of whether and why it may be ok for 2 actions to be functionally equivalent (i.e. producing equivalent outcomes), yet either ethically or legally not equivalent. Lots of quirky and fun ethical and legal scenarios are analyzed (so far it is mostly buildup to what I hope will be a sort of grand unified theory of ethics/law as it relates to this question). I briefly describe the blackmail example at the end of the blog post to satisfy your curiosity.
But the primary purpose of this blog post is to see if anyone can help me understand the section of the book I don’t understand. There is only one such section (so far; I’m only 50 pages in), and fortunately (for you) it is the shortest (less than a page). It seems to me to be a complete non-sequitur. It is here (the relevant section is the one called “Forgiveness”). If someone can argue (to my satisfaction) that this section is not just utter nonsense — in particular, that Katz has shown what he claims to have “show[n]” in the last sentence — I’ll buy that person a beer. And I should emphasize, to encourage you, that I have found no other evidence of nonsensical writing in this book. As further encouragement I estimate that it will take you 90 seconds or less to read the section.
I don’t believe that you’ll be much disadvantaged by lack of context, but I’ll provide one bit: Katz, leading up to the “Forgiveness” section, has been describing cases where Blaise Pascal has found the Jesuits to adhere to an ethical system which seems suspect in that it expressly allows Jesuits to exploit loopholes in the ethical code (e.g. they say it is not o.k. for a Jesuit to willingly take part in a duel, but it is ok to go out into a field with a sword at an appointed time, and defend oneself if attacked). Katz, in “Forgiveness” begins by describing another apparent oddity in the Jesuit ethical code.
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Blackmail example (just for your curiosity, not related to above question other than that it is from the same book): Abigail and Mildred both want to audition for a play at 12p tomorrow. Mildred would prefer that Abigail not show up, thus making it easier for Mildred to get the part. Abigail has been unfaithful to her husband and Mildred knows this. Mildred considers 2 possible courses of action: 1) Call Abigail and tell her that if she shows up to the audition, Mildred will reveal Abigail’s infidelity to her husband. 2) Fed-Ex a letter detailing the infidelity to Abigail’s address, and then call Abigail and tell her that the letter is in the mail and will arrive at 12pm (the implication is that if Abigail goes to the audition her husband will see the letter first). In both cases Mildred effectively causes Abigail to decide between having her infidelity revealed and missing the audition. Yet only case 1 is technically blackmail.
I don’t understand the blackmail hypos because it seems to me that they’re both blackmail. Is the difference that, in the second case, Mildred has already sent the letter and so cannot be accused of threatening to reveal something, since she has already executed her threat?
Okay, regarding your confusion: I don’t think your post makes it clear what confuses you. I am going to proceed on the assumption that you don’t see how the sinner example is analogous to the assassin example.
Based on that one page in the book, Pascal objects to a sinner obtaining forgiveness in those cases where the sinner sinned knowing that forgiveness was likely or assured. I infer that he objects on the grounds that forgiveness should be granted if and only if the sinner truly appreciates his wrongdoing and wishes he had not done it and plans not to do it again; furthermore, Pascal must think that a sinner who foresees the availability of forgiveness is less capable or incapable of true repentance. The fact that the sinner was aware of the possibility or likelihood of forgiveness is probably, according to Pascal, an indicator that any demonstrated repentance might be attributable solely to a desire to avoid punishment. In other words, we know he planned to game the system, and he could be doing so now.
I do see the parallel between this case and the assassin case. The assassin may in fact have chosen a method to execute the crime based upon the availability of an affirmative defense for that method and not the other method. However, this does not preclude a sincere abandonement / renunciation of his murder attempt. Right?
Just because a sinner/criminal/wrongdoer chooses a course of action, knowing that there’s a chance he will be rewarded (or his punishment mitigated) for a later reversal, it is not the case that the sinner/criminal/wrongdoer is incapable of sincerely (i.e. deciding to stop out of moral revulsion and regret, not just fear of punishment) reversing his course of action.
Julian,
Yes to your blackmail question.
You’ve guessed right on what confuses me.
You say: “Just because a sinner/criminal/wrongdoer chooses a course of action, knowing that there’s a chance he will be rewarded (or his punishment mitigated) for a later reversal, it is not the case that the sinner/criminal/wrongdoer is incapable of sincerely (i.e. deciding to stop out of moral revulsion and regret, not just fear of punishment) reversing his course of action.”
I understand this statement, but I do not see that the assassin example proves that this statement is correct as it applies to the forgiveness example: using assassin example, Katz has argued that a person’s foresight that he might decide against committing crime X (and therefore be absolved of guilt due to that decision) should not prevent us from absolving him of guilt when in fact he does not commit crime X. Is this supposed to convince me that a person’s foresight that he will be forgiven upon committing crime X should not prevent us from forgiving him when he does commit crime X? That’s a stretch. In the 2nd case, forgiveness may be withheld because, as you say, there is evidence that the repentance is not genuine. In the 1st case, there is no evidence whatsoever that the qualms that a person has had are anything but genuine (in fact there is strong evidence that they are genuine — the crime was not committed!)
Julian,
I should summarize by saying that the reason that I believe this is a non-sequitur is that Katz seems to assume without justification that whether forgiveness/absolution should be granted is purely a function of the person’s mindset when he was planning the crime (this is the thing that is parallel between the 2 cases – in both cases, the person was planning to do something bad, but with some hope of absolution; note that this is not even perfectly parallel since in the assassin case the person is hoping for forgiveness only if he does not actually commit the crime), and not at all a function of the person’s mindset after the crime is or is not committed (as I mention in my first comment, the would-be-assassin apparently has genuine qualms, while the other person has shown no evidence of true repentance), nor of whether the crime was actually committed.
You say:
“Is this supposed to convince me that a person’s foresight that he will be forgiven upon committing crime X should not prevent us from forgiving him when he does commit crime X?”
Which crime are we talking about here: murder or attempted murder? In Katz’s hypo, the would-be assassin shrinks from committing murder. Katz says that according to the model penal code, the assassin would be innocent of murder (of course) but also of attempted murder, under the doctrine of abandonment. The doctrine of abandonment apparently (it sadly has no wikipedia entry) is an affirmative defense available to anyone who abandoned his effort, manifesting complete and voluntary renunciation of his criminal purpose, or something like that.
Are you saying that: if we know the criminal was aware of the doctrine of abandonment before he attempted his crime, we should be less credulous of his later claims of abandonment?
Well, I agree with that, but that doesn’t mean it’s now impossible for him to satisfy the requirements of an abandonment defense. And I think that Katz intends in his hypo to suggest that this imagined criminal did sincerely renounce and abandon his crime, even though he coldheartedly calculated he might do so. I guess this means the hypo isn’t very realistic, but we’re dealing with his hypo and not reality at the moment.
You also say:
“Katz seems to assume without justification that whether forgiveness/absolution should be granted is purely a function of the person’s mindset when he was planning the crime … and not at all a function of the person’s mindset after the crime is or is not committed … nor of whether the crime was actually committed.”
But in the assassin hypo, the assassin’s renunciation and abandonment of his murder attempt is necessary for him to use the abandonment defense. That is not a facet of the crime that takes place in the planning stage. So I don’t see where Katz assumes, with our without justification, that we should only consider what the criminal was thinking at the planning stage. In fact, that seems like a wholesale misreading of Katz.
As to the crime being committed, in the sinner criminal hypo, the crime “committed” is an attempt. When you suggest that Katz errs in not considering the criminal’s mental state after the crime or attempt, you’re proposing that he/we consider something that we can’t evaluate easily. I assume that’s why the abandonment defense only requires that the criminal establish that he renounced and abandoned his criminal attempt entirely.
You say: “Are you saying that: if we know the criminal was aware of the doctrine of abandonment before he attempted his crime, we should be less credulous of his later claims of abandonment?”
No, I am saying basically the opposite: it would be totally absurd of us to be anything other than 100% “credulous” of the would-be-assassin’s claim of abandonment. He abandoned the crime attempt, and anyone with a firm grasp on reality must admit this (so really “credulous” is the wrong word — we’re not taking anyone’s word for the abandonment, rather it is an unequivocal fact). An analogous statement cannot be made of the forgiveness-seeker. You explain why in your first comment: “The fact that the sinner was aware of the possibility or likelihood of forgiveness is probably, according to Pascal, an indicator that any demonstrated repentance might be attributable solely to a desire to avoid punishment. In other words, we know he planned to game the system, and he could be doing so now.” That is the critical disanalogy.
Coming at it from a slightly different angle: Katz is trying to present this as a question of whether we should give a person credit for “changing his mind,” even if he planned to “change his mind” from the very beginning — the suspicion is that the change is feigned based on the fact that it was foreseen. Katz tries to argue that since we give credit in the case of the would-be-assassin, we should also give credit in the case of the criminal seeking forgiveness. However, in the case of the would-be-assassin, there is in fact no change of mind at all. From the very beginning, the assassin knows that he may abandon his assassination attempt due to new information that he gets (namely, information about how gruesome assassination is). Consider another example: I develop a tentative plan to travel to Toronto and blow myself up in a crowded supermarket. However, I really am not sure how much to hate Canadians (since I’ve never been to Canada), and I know that there is a 33% probability that, upon arriving in Toronto, I will find Canadians to be really friendly people, so I’ll abandon the suicide bomb plan, and instead hit the bars. If I in fact do abandon the suicide bomb plan upon arrival due to my finding that Canadians are nice people, is this really “changing my mind?” No. It is totally consistent with my original mindset: determine how much I like Canadians, and decide based on that which course of action to take. Just like the case of the assassin. (Would Katz argue that I “tried to bomb Canadians but failed” in this example?)
However, in the case of the criminal, forgiveness really does require a true change of mind as an ingredient, and that is the key ingredient which, as you explain in the argument I’ve quoted above (2nd instance of my quoting you in this comment), may be missing.
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