Saul Smilansky: "Is There a Right To Be Deterred?"

ABSTRACT

The notion of a "right to be deterred" (henceforth RTBD) from wrongdoing has not, to the best of my knowledge, ever been seriously considered, and clearly there is no thorough philosophical discussion of it. If there is indeed a moral RTBD, it remains morally, socially and legally unrecognized as such. An RTBD seems an obvious non-starter, and indeed quite absurd. Not having been deterred cannot be a moral or legal excuse for wrongdoing, at least for sane adults; and "But you didn't deter me" does not seem like a plausible moral complaint from an offender. An expectation for the creation of (say) total deterrence for all crime on the social level would be both unfeasible and highly dangerous. And being deterred typically involves fearing the sanctions of others; a "right" to have such fears created and enhanced, let alone having the sanctions executed upon one if the fears created were not sufficiently deterring, seems particularly odd. I argue, however, that to some extent a RTBD exists, and people can be wronged by it’s not being respected; reflecting upon it should be philosophically fruitful and morally significant. Beyond introducing the idea of a novel right, the RTBD can inform our understanding of the intersection between the individual and the social in new ways.