AGAINST JEFFREY HOWARD ON ENTRAPMENT.

Author:Stanhope, Jonathan
 
FREE EXCERPT

IMAGINE WICKED BARRY, impressionable Carl, and innocent Leila. Suppose Barry fosters in Carl an intention to kidnap and torture Leila, in a way that does not negate Carl's moral responsibility. (1) (It does not amount to brainwashing, say.) Hence, if Carl actually does kidnap and torture Leila, he wrongs her. And Barry wrongs Leila too, by culpably encouraging Carl.

Plausibly, this completes the catalog of wrongs in our example. But in a recent paper, Jeffrey Howard develops an intriguing argument to the contrary. (2) He contends that, by inducing Carl to do wrong, Barry wrongs Carl. Ironically, Carl shares something with Leila: a complaint against Barry.

The implications of Howard's argument--if correct--are profound. First, entrapment by law enforcers is wrong even if it does not lead to the prosecution or punishment of the entrapped person. (3) Second, the wrong of entrapment is, ceteris paribus, indistinguishable from the wrong committed by private citizen Barry. Third, governments wrong many of their citizens in entrapment-like ways through policies that make it rational for them to act wrongly. For example, inadequate education, job scarcity, and permissive firearms laws foreseeably encourage some citizens to join criminal gangs. Consequently, our obligations to reform or transform prevailing political and socioeconomic conditions are even stronger than we initially thought. (4)

Howard's animating idea is that inducements to do wrong subvert or interfere with the induced agent's moral capacities. (5) He believes that we each have a categorical, constraint-imposing duty not to foreseeably increase the likelihood that another agent (culpably) acts wrongly--hereafter DUTY--that is grounded in a more basic obligation "to respect the first moral power"--hereafter FMP--of that agent. (6)

I accept the existence of the more basic obligation. Nonetheless, whether it entails DUTY, and thereby condemns entrapment and neighboring phenomena, depends on how FMP's value is grounded. For Howard, the value of FMP is such as to demand a regulative attitude of support for FMP'S successful exercise rather than its exercise per se. (7) In what follows, I offer a more nuanced account of the value of FMP, one more attuned to certain liberal thoughts about agency. This undermines Howard's case for DUTY, and by extension his case against entrapment and its neighbors. (A fact that, I conclude, proves especially significant for the all-things-considered permissibility of entrapment by law enforcers.) Still, in a constructive spirit, I also sketch a different argument for DUTY Though it does not yet persuade me, I hope it can be developed in a compelling direction.

I

Borrowing from John Rawls, Howard construes moral agency in terms of two moral powers. (8) In doing so, he notes that the second--the capacity to set, revise, and pursue a conception of one's rational advantage--has received much greater attention in liberal political philosophy than the first. Whereas the second is central to autonomy-based arguments against paternalism and perfectionism, for instance, the first rarely receives extensive discussion. (9) Howard's focus on FMP is a welcome change.

On Howard's definition, FMP is an "agent's capacity to reason about right and wrong and to regulate his conduct by the conclusion of his reasoning." (10) This, quite properly, omits any reference to correctness: FMP can lead the agent to defective conclusions, or--as with akrasia--fail to generate right conduct even when the agent has moral knowledge. Yet in outlining what respect for FMP involves, Howard writes that one aspect is "recognizing the power's existence: the person's capacity to reason about the demands of morality and live up to those demands." (11) Not what the agent thinks are those demands, but simply those demands, period.

In addition, Howard argues that the second, more demanding component of such respect is a regulative attitude of support for FMP'S successful exercise. And this follows from the idea that "the value of the first moral power inheres largely in its successful exercise." (12) To respect FMP is to respect its proper functioning, given that FMP'S value is grounded in the value of the right conduct it enables. Since foreseeably increasing the likelihood that another...

To continue reading

FREE SIGN UP