Saul Smilansky recently arguedFootnote ¹ that there is an antinomy with respect to the question of whether people who freely commit a moral transgression have moral grounds to complain, if they are then treated in similar ways by others (285). I present two arguments against the alleged paradox of moral complaint.

According to Smilansky, two competing views create the paradox. In the first, which I will call ‘the Silencing View’, victims of a moral wrongdoing lack moral grounds to complain if they have freely committed a similar wrongdoing in the past. As per Smilansky, this view is justified since through their own actions wrongdoers-turned-victims have forfeited any moral basis for a legitimate expectation to be protected by moral norms that they themselves do not respect. Hence, they cannot resent being wronged, nor complain about the violation (285), i.e. they have no moral standing to do so and thus they are effectively silenced. This view draws its power from what Smilansky calls ‘the legislative nature of morality’, according to which one's moral actions set a new norm (284), and thus ‘the wrongdoers have legislated in a way that precludes their own moral complaint’ (286). The view is thus based on the complainer's implicit negation of the principles of fairness and equality, through his expectation and demand to be treated differently from the way in which he has treated others. The second view, which I will term ‘the Free Complaint View’, affirms the moral standing of such complainers. According to Smilansky, this view is based on the claim that certain moral standards should always be upheld, ‘no matter what’ (286). Smilansky points out that ‘if A wrongly harms B, it is not permissible for the relevantly similar C to wrongly harm the relevantly similar D (even if D is A)’ (286). Paradoxically, he claims, this view also follows from the ‘legislative nature of morality’, since ‘to harm A wrongly would be to condone A's harm to B’ (286).

It is Smilansky's claim that his arguments in favor of the Free Complaint view and the Silencing view are equally justifiable, and therefore create an antinomy and a moral paradox. In what follows, I will present two arguments attempting to undermine Smilansky's alleged paradox. Following Smilansky's example (286), I too will bracket the issues of repentance, genuine contrition and weakness of will.

THE ARGUMENT FROM UNJUST DOUBLE PUNISHMENT

The Argument from Unjust Double Punishment provides a morally conclusive argument in favor of the Free Complaint view while also independently challenging Smilansky's own line of defense in favor of the Silencing view, thereby undermining the paradoxicality attributed to the conflict. The argument assumes that complaining wrongdoers have been or are being sanctioned for their immoral actions. The sanction involved may be criminal, social, political or public. On the basis of this assumption, I claim that to silence the complaining wrongdoers (i.e. to determine that their moral complaint has no moral standing) would be to wrongly punish the wrongdoers a second time.Footnote ² Thus, referring to Smilansky's example (284), an incarcerated violent criminal has already been penalized once by society, through his incarceration. Therefore, it would be morally unacceptable to administer an additional, second sanction, by silencing this criminal's complaint – even though the wrong he has suffered (say, that he was wronged by being brutally beaten by the prison guards with no justification) is similar to the one he himself has actively committed in the past.

I believe that sanctioning the complaining wrongdoer through silencing him is morally unacceptable for the following interrelated reasons: First, it is morally unfair, given that such a sanction does not apply equally to all the committers of a particular type of wrongdoing (say, violent criminals). Instead, ironically, it would be administered only to the less fortunate wrongdoers who have themselves become victims of a similar transgression.Footnote ³ Moreover, silencing the transgressor-turned-victim would also be irrelevant to his past misconduct, since it would be activated obliquely upon the occurrence of a separate unrelated event (i.e. the wrongdoing committed toward the transgressor himself). The discussed irrelevance is particularly disturbing if the transgressor has offended in the past and was then wronged by several unrelated persons. Lastly, and most important, a second sanction under these circumstances would typically result in an overall punishment that is too severe.Footnote ⁴

On the basis of Smilansky's proposed solution at the end of his article, one could counter-argue that it is possible to ‘disconnect moral complaint from moral constraint’ (289). Accordingly, the ‘right’ of the wrongdoers to complain may be curtailed even if they were wronged but the general constraints, which forbid harming them unjustly, would remain in force. In the example we considered, the unjustified beating up of the violent criminal by prison guards would remain forbidden, even if – were such beatings inflicted – the criminal could not morally complain. Hence, Smilansky may claim that the mere silencing of a transgressor's complaint does not constitute a violation of the transgressor's rights not to be wronged, but only a denial of the transgressor's right to complain about the violation of his rights, and that such a denial should not be considered a further, second sanction.

One possible reply is that it is in fact impossible to disconnect moral complaint from moral constraint, since denying one the option to complain about the violation of a specific right may lead to the devaluation of this right, which could ultimately result in its de facto elimination.Footnote ⁵ If we are to accept this interpretation, then depriving one of the ‘right to complain about the violation of X’ would equal the deprivation of one's ‘right to X’. In any case, even if we agree that it is possible to disconnect moral complaint from moral constraint (and thus, that the ‘right to X’ is different from the ‘right to complain about the violation of X’), the right to complain must, after all, bear some meaning even in the eyes of the proponents of the Silencing view, otherwise their insistence on denying such a right seems pointless. In fact, silencing the complaining wrongdoer should be considered a moral sanction also due to the potential advantages one may acquire via moral complaint, which would be lost upon the deprivation of the right to complain (e.g. the initiation of a dialogue with the wrongdoer or the involvement of third parties should the complaint be addressed to them).Footnote ⁶

Another possible counter-argument focuses on the narrow applicability of my Argument from Unjust Double Punishment, suggesting that it cannot apply if the wrongdoer has not been sanctioned for her past conduct. For, under such circumstances the complainer, who has committed a transgression in the past but was not sanctioned for it in any way, would not then be able to claim that disallowing her moral complaint (in the event that she becomes a victim of a similar wrong), can be considered a second sanction. However, the applicability of my argument is much broader than it may initially appear: recall that the first sanction administered to the wrongdoer does not necessarily have to be a criminal punishment in the classical sense, and could very well be a social, political or public sanction, as appropriate in accordance with the transgression committed. Thus, for example, a complaining-gossiper might suffer a sanction in the form of a limited social ban or the loss of a friend. In addition, such a sanction does not necessarily have to be particularly harsh and as long as it is proportional to the transgression committed it should suffice in order to activate the claim that silencing the complaining wrongdoer would result in an overall punishment that is too severe.

Nevertheless, even in the event that no sanction has been previously administered to the transgressor-turned-victim, I believe that the three claims composing the Argument from Unjust Double Punishment may still remain in force: First, the claim that silencing the complaining wrongdoer is unfair assumes only that there is a potential easily applicable alternative to administer the first sanction to all the committers of a similar type of transgression. For, if such an alternative exists there will be a clear preference to attempt to administer that sanction evenly. Second, the claim regarding the irrelevance of the second sanction would apply even if the complaining wrongdoer has not been (or even cannot be) sanctioned. As for the third claim regarding the excessive severity of the overall punishment administered, note that such a claim may still be valid. Only now, sanctioning the complaining wrongdoer by silencing him may deem any future direct sanction (administered with respect to the transgressor's former wrongdoing) a redundant second sanction. And thus, since each of the first two claims prioritizes the administration of a direct sanction to the transgressor-turned-victim (rather than an indirect, unfair sanction such as silencing his or her complaint would be), we must also take into account the objective to administer to the complaining wrongdoer such direct sanction in the future. Such an objective would deem the complaining wrongdoer's current silencing unacceptable.

Lastly, we should take note of the fact that silencing the complaining-wrongdoer if he has not been sanctioned for his past transgression may result in what can sometimes be referred to as ‘poetic justice’. The transgressor-turned-victim who has not been sanctioned for his past transgression is, nevertheless, confronted with a ‘just’ moral result as it is determined that he lacks moral grounds to complain when faced with the sort of wrongdoing that he has committed in the past. Such a moral result may be considered a moral analogy to the action of a vigilante who takes the law into his own hands because no formal criminal process is initiated. Following the said analogy, we can immediately notice that although ‘poetic justice’ under the discussed circumstances (much like the case of the vigilante), may be morally tempting, it obviously rests on very dubious moral grounds. For, it would result in a sanction that is arbitrary and unfair, administered sporadically only to those transgressors who happened to turn into victims.Footnote ⁷

Now, in order to refute the paradox it is also necessary to dispute Smilansky's own argument in favor of the Silencing view. Recall that Smilansky's argument relies on the ‘legislative’ nature of morality and so on the complainer's implicit negation of the principles of fairness and equality (including a lack of a basis for a legitimate expectation to be treated differently from the way in which she herself has treated others). However, I assume that the sanction that has been imposed on the wrongdoers is also a moral action with legislative effect. Therefore, if a wrongdoer was sanctioned for her transgression she would have a legitimate expectation that a similar sanction would be administered to the transgressor who has wronged her. Her legitimate expectations would establish a moral standing for her moral complaint based on the very same principles of fairness and equality implied by Smilansky's argument. Therefore, I believe that if the complaining wrongdoer is or has been sanctioned for her transgression (or even if such a sanction is expected to be administered), Smilansky's argument in favor of the Silencing view would produce the opposite conclusion, namely, that the Free Complaint view should prevail.

To conclude the Argument from Unjust Double Punishment, it clearly determines the conflict in favor of the Free Complaint view and undermines the validity of Smilansky's line of defense in favor of the Silencing view. Moreover, it appears that, contrary to what initially seems like a problem for the argument, namely cases where the complaining wrongdoer has not been already sanctioned, the argument's applicability appears to be relevant there as well.

THE ARGUMENT FROM DISTINCT EXAMPLES

The Argument from Distinct Examples, which challenges the validity of the alleged paradox, is based on an alternative explanation of the seemingly paradoxical moral results. The central claim of this argument is that a different set of contrasting values and principles is placed on our moral scales in each example. Hence, a different result is obtained in each case, depending on the moral weight we attribute to each of these values and principles, and the severity of impairment thereby created. According to Smilansky, the Silencing view evokes values and principles that are constant (i.e. the values of equality and fairness and a general lack of moral basis for wrongdoers-turned-victims to expect to be protected by moral norms that they themselves do not respect). By contrast, the values and principles that come into play in the Free Complaint view are determined by the specific circumstances and the particular rights that have been violated in each case.

Referring back to Smilansky's examples (284–5), consider the case of an active gossiper who complains of being the subject of others’ gossip. In this example, the Free Complaint view is supported by the victim's right to privacy. Consequently, I believe that the Free Complaint view would be intuitively rejected since the general tendency would be to favor the principles and values propounded by the Silencing view (i.e. equality and fairness as specified above), at the expense of the values violated by the transgression (i.e. the victim's right to privacy). If, by contrast, we consider the more extreme example of terrorists who kill innocent civilians and then complain when innocent people whom they care about are killed, matters differ considerably. In this example, the Free Complaint view would rely on the general principle sanctifying the lives of innocent people. As a result, it seems that the general tendency would be to attribute greater significance to the violation of such a principle by the transgressor who harmed the complainer, and to dismiss the values (such as equality and fairness) associated with the Silencing view.Footnote ⁸

The conclusion seems to be that there is no one single real paradox of antinomy here, with two evenly justifiable contradictory results (as Smilansky claimed), but rather many different, usually asymmetrical, actual moral dilemmas, which lead us in a different direction in each specific case. Only the residual, symmetrical, moral dilemmas might be left undetermined; and even those residual cases should be treated merely as a collection of diverse moral dilemmas rather than a single paradox. In addition, it is also clear that the moral conclusion oscillates only as a result of the different values and principles underlining the Free Complaint view and the severity of their impairment (while the principles of fairness and equality which underline the Silencing view remain constant).

To conclude, I have offered two distinct arguments against the claim that moral complaint is essentially paradoxical. The Argument from Unjust Double Punishment shows the silencing of the transgressor-turned-victim to be a redundant, unfair and irrelevant additional sanction, and also independently refutes Smilansky's own line of defense of the Silencing view. In the light of this argument, actual dilemmas will usually be clearly determined in favor of Free Complaint. The Argument from Distinct Examples demonstrates that the difference in the moral results obtained in each case (a difference mistakenly conceived as a paradox) results from the different moral weight we attribute to the values and principles underlining the Free Complaint view in each case versus the principles of fairness and equality constantly underlining the Silencing view. In this way, Smilansky's paradox of moral complaint is ‘broken into’ separate asymmetrical, moral dilemmas, which seem to be more easily resolvable. In addition, the diversity of those dilemmas (despite their similar structure) also contributes to seeing them as separate dilemmas rather than as one single paradox. In this way, the arguments I have offered all seem to me to have refuted Smilansky's claim that we have a paradox at all.Footnote ⁹