Is punishment just?

The extensive comments on my last post call for a more considered response to the basic question of why punishment is just. The utilitarian answer is obvious enough, and valid. But it’s also obvious that the many Americans (me included) who cheered bin Laden’s killing were not moved by a cold utilitarian calculus but rather a deeper conceptualization of justice. And, as the comments brought out, this is a tricky issue.

(Here’s a link to one discussion I found on the topic; for all the philosophical ornamentation, it too ultimately makes a utilitarian argument.)

I had sought to distinguish between justice and retribution, which has a bad odor of primitivism. But, on further reflection, if justice is to have more than a utilitarian foundation, then retribution is part of it, which I’m willing to endorse.

Philosophers from Hume to Ayer have maintained that a statement like “murder is wrong” is a mere statement of feeling, unverifiable by any objective process. And it’s true that there’s no “1+1=2” morality “out there” for us to discover. But that does not lead us to the nihilistic conclusion that morality and justice are meaningless. They have the meaning we elect to embrace.

My starting premises are that (1) the only thing that matters in the Universe are the feelings of beings capable of feelings; and hence (2) bad feelings are bad; and (3) causing them (unnecessarily) is wrong.

Some maintain that free will is an illusion because all our thoughts and actions have antecedent causes, as though we are like computers running programs. I consider that too simplistic, and maintain that we do have a meaningful form of autonomy (an extended argument on this can be found in my book, The Case for Rational Optimism). Suffice it to say here that humans are able to make choices, and do make choices. No matter what powerful determinative causes may operate, a human being still has the ability to disobey them. Smokers, for example, can quit.

So some deeds are wrong, and they arise from wrongful intentions.

 Now, what do we mean by “justice”? It’s significant that the figure of Justice is always depicted holding scales, that are balanced – balancing is the essence of justice. This clearly underlies the commenters’ advocacy of reparative justice – “make whole” is the term of art – so if I steal your TV, justice requires giving it back, or paying equivalent value. Fair enough. But what if (as so often) the harm is pain – mental and physical? (A semi-aside: people who have not been crime victims tend to grossly underestimate the psychological pain.) That can be compensated, but the victim cannot really be made whole, i.e., cannot have the suffering expunged (especially if he’s dead). So here comes retribution – again, a balancing – if I made you suffer, then I should suffer. (Notice that the figure of Justice also wields a sword!)

No, retribution does not undo the victim’s pain either. But it does balance it. (Take a look at this link — a literal case of an eye for an eye.)

The commenters who resist this idea seem to conceive of retributive justice as though it’s arbitrary, needlessly adding to the sum

total of human suffering. That would certainly apply to “collective punishment,” as per my prior posting. But not where the punishment is deserved. Then it’s not an unnecessary addition to human suffering; it’s necessitated by the action of the wrongdoer, to restore the balance of justice among people. And I emphasize that word deserved because if you reject this idea, then I think you are rejecting the whole concept of desert and, with it, the idea of justice itself. Because if justice is divorced from what people deserve, then what have we got?

People are responsible for their actions; and when people act wrongfully, and cause harm, they deserve punishment.

(The issue of who administers that punishment is a “whole ‘nother” subject, distinct from the basic question of whether punishment is morally justifiable.)

6 Responses to “Is punishment just?”

  1. Lee Says:

    I think we all agree that some deeds are wrong and that some wrong deeds arise from wrongful intentions. Where we are still disagreeing is in the value of balance and whether punishment is necessarily the right way to achieve justice (or balance).

    Balance: First of all, I think the scales of justice are for weighing the evidence, and that an accurate determination of which way the scale tilts is the indicated essential part of justice. And I think the sword indicates that force will be used to enforce judicial decisions when necessary, whether or not those decisions include an element of retribution. (If you don’t return that stolen pig, the law will use force to effect its return.)

    [FSR: I think the scales mainly represent FAIRNESS. And I’m glad you acknowledge that force can have a proper role to play.]

    Secondly, I agree that there is an aesthetic value of balance in art, there are reasons to appreciate parallelism in writings, etc; however, because punishment can have devastating effects when misapplied, I need stronger reasons to support the use of punishment. If there are people who think balance via retribution is an essential part of justice for emotional reasons, that doesn’t work for me either. Again, because misapplied punishment can be devastating, I need reasons that are both strong and rational.

    I need to know what is in it for me, my family, my country, and/or my world, as evaluated according to my priorities. When I want to convince you that punishment is or is not appropriate in a given situation, I know of no better way then to try to convince you of which is better for you, your family, your country, and/or your world, as evaluated according to your priorities. Sure, you may be drawn to a sense of balance, but I am betting that other, more practical considerations will always be more important to you. Contrastingly, if you argue that balance is the dominating consideration, I worry that you have let your emotions overwhelm your rationality.

    Punishment: I agree that justice requires that something be done when people intentionally cause harm, but I don’t see why that necessarily implies punishment. For instance, suppose my spouse has intentionally wronged me in a way that hurts me to the very core of my soul. Certainly, I would feel the urge for retribution — because we’re talking about being hurt to the very core of my soul. However, I believe, whether retribution is the right approach for me depends very much upon the more practical considerations. Yes, I could sue for divorce and all the family assets, but maybe it would be better for me to respond with love; maybe the motivation for the intentional wrong is something we can fix if we work together, with the result of a strengthened, loving marriage that is better for me (and my spouse and our children). It is this sort of analysis that is ever so much more relevant to me than a sense of balance.

    To be clear, I don’t believe that bin Laden could have been won over with love. However, I think the same logic still applies. Retribution may be the best alternative, but each of us should determine that by an examination of the practical considerations and how they affect our priorities. Although I have an appreciation for balance, I just don’t see that ever being significant enough to outweigh the more practical considerations.

    [FSR: Ever? Perhaps the problem is something I didn’t make clear but, I guess, assumed. Of course I don’t think misdeeds should always be punished! Of course there are sometimes other considerations — your marital example is a very good one, where certainly other considerations come into play. But you seem to resist that punishment is ever appropriate, even though you come close to accepting it in the extreme case of bin Laden. I imagine that I would vote for punishment more often than you would; but are you really at “never”? And if not, then is there really a philosophical disagreement?]

  2. Lee Says:

    Another real world example: yesterday’s speech by President Obama included “The Syrian people have shown their courage in demanding a transition to democracy. President Assad now has a choice: He can lead that transition, or get out of the way.” I note that Obama is giving Assad a chance to be part of the solution and I suspect that Obama is implying that some of the harsher punitive retribution might be forgone if Assad cooperates.

    Although, I would gladly make this offer to all Assad supporters below the rank of, say, general or equivalent, I am not so sure I would make such an offer to Assad himself, because I fear that Assad would twist the offer in some way to unholy advantage. But, I fully applaud Obama’s focus on the outcome, a democratic Syria, rather than on settling the score.

    [FSR: Though I think Assad’s getting the Ceausescu treatment would be just, and I would rejoice, I agree that there are far larger considerations at stake than justice vis-a-vis one single person. While it would be optimal for Syria to gain democracy with Assad executed (because it’s a better world where that is a criminal dictator’s fate, rather than his retiring to a comfortable villa in Zimbabwe), we cannot let the perfect be the enemy of the good!]

  3. rationaloptimist Says:

    From Frank’s wife Therese:

    Lee, would you be willing to define “soul” in the context in which you say “hurts to the very core of my soul”? Are you using this phrase literally or metaphorically? If metaphorically, what does your “soul” represent?

    As a poet, I sometimes seek balance in the poems I read and write. However, I think that human beings seek balance in part because (merely because) they are bi-lateral physical creatures. Their two eyes, ears, arms, legs, lungs, brain hemispheres, etc., lead people to believe that “balance of two parts” is to be preferred merely because it’s anthropomorphic. But I think that an aesthetics of balance relies on surface appearances. Is it OK sometimes to rely on surface appearances? Yes, just as it’s OK sometimes to think of the table as real and solid rather than as almost empty space between molecules or strings. But it’s also OK to seek a more rigorous aesthetics (implicating fractals or entropy or asymmetrical tension, for example) which results in greater texture and dynamism than does poised balance. With regard to ethics and this blog discussion, that kind of rigor would lead me to say to myself: “Who says life is fair? Who says life should be fair? Life can never be perfectly fair. Fairness is an unattainable unreality, like “God” (which I don’t believe in). So, I might just sometimes tell myself, “get over it” when things aren’t “just.”

  4. Lee Says:

    Therese, I would be afraid to try to define soul! I used the phrase “hurt to the very core of my soul” to make it clear that my example was not about a slight, but rather about something that would affect me even more than September 11 or the fate of bin Laden.

    Frank, what do you think of this somewhat simplified characterization of our difference in philosophy?: When I hear someone champion the retribution aspect even where more practical considerations abound, I worry that the person has a tendency towards the irrational and that the person may continue to support retribution/balance even in situations when it is far short of the better alternative. When you don’t hear someone champion the retribution aspect, you worry that the person is irrationally defective in the justice gene and will abandon retribution/balance even when it is the far better alternative.

    [FSR: I am still waiting to hear you say that retributive justice can, at least sometimes, be morally right.]

  5. Lee Says:

    Retributive justice can be morally right when, e.g., it restrains the perpetrator from repeating, helps to reform the perpetrator, or motivates against copy cat crimes.

  6. Robert Says:

    As and old gentleman stated to me one day after I told him about my escapades after stealing one of the neighbors chickens, “Boy, dem chickens mays or mays not knows what u donedid. But de farmer wills find out and when he does uns going has to pays the price fur dats chicken!
    The point is simple without society acting as the farmer then anarchy will prevail because every thing taste lime chicken.

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