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I think that moralistic judgements and punishments are insidious: they make

I think that moralistic judgements and punishments are insidious: they make people do things out of shame, guilt and for the wrong reasons. It seems to me that they can hinder people from empathetically connecting with their own needs and the needs of others, that is moral judgements are metaphorical defensive walls that we erect as part of our outer shell. Allow me to illustrate what I mean. Suppose one child hits another. If the perpetrator's parent interferes and scolds their child using the moralistic language and punishments that is pervasive in society, e.g. 'you are a bad boy', or 'that was a wrong thing to do' and then banning from watching T.V. Now the usual response this will get is either: a) defensiveness, e.g. 'he started it' and/or b) if the perpetrator does refrain from similar behaviour in the future it will probably be because they want to avoid being punished. This could be contrasted to a parent attempting to empathise with why the child hit in the first place and drawing the child's...

In response to your first question, there is a pretty significant discussion in contemporary ethical theory regarding the concepts of obligation and duty. Elizabeth Anscombe, in “Modern Moral Philosophy” suggests that talk of duty is meaningless absent the existence of a lawgiver. Both Michael Stocker (“The Schizophrenia of Modern Ethical Theories”) and Bernard Williams (“Persons, Character, and Morality”) take this concern further, and argue that concepts of duty and obligation can be psychologically damaging to agents. While these authors don’t explicitly discuss the moralistic judgments and punishments your question cites, they do address your more fundamental concern that appealing to “duty” is problematic.

Your second question is harder to answer. Some might justify appeal to moralistic language and punishments on the grounds that they can be effective modes of getting people to do the “right” thing (even if they psychologically damage people in the process!). One might try to justify the workings of guilt and shame by appealing to aspects of human nature that make it the case that we feel guilty when we harm other people, and so on. This sort of justification could be quite plausible, so long as the feelings of guilt and shame are tracking something real (i.e., inherent to human nature), and not just some “doctrine” that people have been brought up to believe in.

American Protestant fundamentalists who are against abortion frequently say they

American Protestant fundamentalists who are against abortion frequently say they are for a "culture of life." It seems that many of them also support the death penalty and have a low threshold for a willingness to wage war. Does anyone know how they justify this seeming contradiction? What is remarkable to me is that fundamentalist Christians who are against abortion seem to hold this value of "unborn life" above almost all else, saying that they are "single issue voters." Not only do I wonder how this is reconciled with their not seeming to value the lives of convicted criminals and those will die due to wars that we easily enter, but also how they put the value of a fetus' life above all the other things that Christians are supposed to value, that, if one is a single issue voter, one gives up fighting for. I guess what I mean is, how is this favoring of one class of lives justified philosophically/religiously against the valuing of other classes of lives and other "Christian" values? Thanks.

I think it comes down to a question of guilt or innocence. A criminal has committed a major sin, and hence deserves a major punishment: an eye for an eye, a tooth for a tooth, and a life for a life. Even just an ordinary adult will have some track-record of sin behind them -- none of us are perfect. They might not quite be evil enough to deserve to be targetted directly, but nevertheless it wouldn't be such a terrible thing if they were to become the victims of collateral damage in war. But an unborn baby, having had no opportunity to sin, is completely and utterly innocent, an unblemished soul, and consequently of greater moral worth.

As far as I can discern, that's roughly the idea that those fundamentalists have. Speaking for myself, I regard this attitude as wholly abhorrent, both antithetical to the teachings of Jesus and morally repugnant in itself. But, hey, that's just my opinion, and what do I know?

I think that a lot of our common intuitions about punishment require that pure

I think that a lot of our common intuitions about punishment require that pure retribution be considered as one of the goals thereof. It is easy to conceive of scenarios in which punishment does not act (1) as a deterrent to crime or (2) to relieve the suffering of any injured parties. Often it seems that one of the main reasons we have to punish someone is simply our conviction that he somehow "deserves" to suffer. I'm sure that most people don't see this as problematic. Yet I wonder in particular how a utilitarian would address the question of retribution, since it is not obvious (at least to me) just what the utility of retribution is.

I agree that standard utilitarians would find it hard to justify retribution as such, that is, without appeal to such further effects as you mention: deterrence and satisfaction to injured parties. But I do not agree that this leaves many punishments without a utilitarian justification. The problem you see is that "it is easy to conceive of scenarios in which punishment does not act (1) as a deterrent to crime or (2) to relieve the suffering of any injured parties."

In fact, I believe, this is not so easy. Let's start with (2). Suppose someone murders a man who was a bit of a loner and not much liked by the few people who knew him. He won't be missed. So it may seem that punishing the murderer won't give satisfaction to any injured parties because no one is really injured by the man's demise. But this overlooks that there are others who have lost a loved one to murder and others on whose life an attempt has been made. They, too, are injured parties -- not injured, to be sure, by the murderer of our man, but injured by others with murderous intent. And they are likely to get satisfaction from the fact that murderers get caught and punished appropriately. Or so the utilitarian might say in response to you.

Somewhat similar thoughts apply to your (1). Here you may have in mind, perhaps, very rare crimes that virtually no one has any inclination to commit. It may seem that punishing such a crime would not deter anyone. But now imagine that we accepted your argument and stopped punishing crimes that virtually no one has any inclination to commit. Then those who have such very rare inclinations would take notice and feel much freer to follow them. The utilitarian response then is that, by punishing a crime that virtually no one would want to commit we are deterring not merely crimes of this kind, but also all the many other kinds of crimes that almost no one has any inclination to commit.

Perhaps you had another thought in the deterrence case. Perhaps you thought of crimes whose incidence would not be affected by the prospect of punishment. The law does recognize such cases, and does in fact offer leniency when the accused is shown to have been temporarily insane, for example. Utilitarianism would endorse such leniency, but with caution: there is a genuine danger that such leniency can have deleterious effects on deterrence by encouraging prospective criminals to believe that, with some advance planning and a good lawyer, they'll probably be able later in court to create some reasonable doubt about their sanity at the time of their crime.

In conclusion, I do not think that there really are many scenarios of pure retribution where punishment neither strengthens deterrence of crime nor gives satisfaction to any injured parties. With respect to the problem you pose, utilitarianism can account pretty well for our punitive practices. Utilitarianism does poorly, I think, in accounting for the severity of the punishments we mete out. Utilitarians would impose severe punishments when the extra harm to the criminal brings a larger reduction in the harm done by crime. Utilitarians might then impose a very severe punishment for a very slight crime, so long as this punishment has a dramatic impact on the incidence of this crime. An extreme example: imposing the death penalty for not wearing seat belts might cause a good number of executions annually. But it would also terrify millions of current scofflaws into reliably wearing their seat belts, thus saving perhaps many more persons than get executed from dying in accidents. If this were so, utilitarians might approve the death penalty in this case, while it would strike the rest of us as insanely disproportionate.

Suppose a man commits murder and is then promptly involved in a car crash that

Suppose a man commits murder and is then promptly involved in a car crash that leads to complete loss of all his memories prior to the car crash. The police have indisputable proof that the man did indeed commit the murder. Should they prosecute? If you conclude that they should because in some sense he's physically the same person what if a murderer somehow makes a copy of themselves and then commits suicide, should the copy be prosecuted? If you conclude that they shouldn't be prosecuted because the person after the accident is a different person from before the accident what if there's indisputable evidence that all of their memories will return in 5 years? 5 weeks? 5 days? To my mind the person after the accident is a different person from the one who committed the murder and should therefore not be prosecuted. If the memories return then they should be prosecuted but we shouldn't punish them for a crime "they" didn't commit. But I am unsure as to how much of their memories need to return before...

Wow, you have come up with a case I love to use in my philosophy of mind to connect issues of personal identity to moral responsibility and "moral luck." I have students read the Oliver Sacks' case of Donald ("Murder" in The Man Who Mistook His Wife for a Hat). Donald took and, while high, killed his girlfriend. He had no memory of the incident (assume this is true for now) and was found not guilty by reason of (temporary) insanity. A few years later he was hit by a car and suddenly (re)remembered the gruesome murder (offering details only the killer could know). The case raises lots of questions: Is Donald on PCP (DPCP) the same person as Donald before (DBefore)? And is Donald at trial and the next few years (DTrial) the same as DPCP? And is Donald after recovering his memories from the accident (DAfter) the same as ... and DTrial and DBefore??

And beyond these questions about personal identity, there's the question of moral luck: assuming that Donald before (DBefore) had no more reason to think he'd become a killer than anyone else planning to take PCP, should DTrial (or DAfter) be charged with murder (DPCP seems to have intentionally killed his girlfriend, as in second-degree murder)? Or is Donald on PCP such a different person that it is only fair to blame him for doing something as stupid and illegal as taking PCP but not for murder?

So far, I've basically just re-iterated your very interesting questions, but I thought the parallels were interesting. Now, how to answer them? Well, everything depends on your theory of personal identity. If you hold John Locke's memory (or same consciousness) theory, as you seem to, then it seems that DTrial should not be punished for what DPCP did since he can't remember it, but as you suggest, DAfter could be punished for what DPCP did--unless you want to bring in the moral luck worry and say that even though DAfter remembers it, he shouldn't be blamed for more than taking PCP since DBefore had no reason to think he'd do what DPCP did! Except you might think there is something bad about DBefore's character that predisposed him to murder when he loses his inhibitions! Or you might want to charge him with manslaughter as we do with drunk drivers who kill (another case of moral luck since the drunk driver who doesn’t kill may have just gotten lucky someone didn’t cross his path). And then there's the (epistemic) problem of how we can know whether DTrial is faking it or not (the problem of other minds rears it's ugly head). Even Locke suggested that we must punish the man who commits a crime while drunk and says he doesn't remember it because we can't be sure, and we have to deter others from trying to get off by committing crimes while drunk (well, he said something like that). So, as a general rule we may need to punish bodies for what they do even if they claim not to remember doing it. Or we may decide to punish bodies because we hold a bodily criteria for personal identity. If I read Derek Parfit right, he seems to suggest that our practical interests (such as legal responsibility) will set the boundaries of the conditions for personal identity (e.g., we'll just have to stipulate what to say about weird cases) rather than there being a metaphysical truth about personal identity which we then apply to our practical interests (such as legal responsibility).

I better stop before I try to deal with your case of the murderer copying himself.

The Times reports that Martin Tankleff was just granted a second trial after

The Times reports that Martin Tankleff was just granted a second trial after spending 17 years in prison for a crime that he very likely didn't commit. If he's found not guilty, or, more to the point, if he's in fact not guilty, why doesn't he have the right to commit 17 years' worth of crimes "free of charge"? OK, maybe not 17 full years' worth, but you'd admit, I hope, that at least some of the jurisprudence of punishment is based on retribution, so can you discuss the role of his time served in future punishment deliberations? For instance, say he happens to commit a crime later in life, not out of some sense of entitlement, but for any of the other "normal" reasons (like passion!): how relevant should his time served be?

My impulse is to say that we're mixing apples and eggnog. It's true that retribution is part of the way we thinkabout punishment. But however we understand retribution, it's hard tosee how the State's wrong against you would make it okay for you to robme or beat me up. After all, even though I'm part of the body politic, qua private citizen, I don't represent the state. And in any case, robbery, embezzlement, assault and various sorts of mayhem are the kinds of things we should shy away from. Giving someone a free pass on future misdeeds because of past mistreatment by the State seems to miss that point.

If Mr. Tankleff is indeed found not guilty, then it's not unreasonable to think that he should receive some sort of compensation. But 17 years (or even 17 days) of punishment-free crime doesn't seem like the right way to go. Things being what they are (no time machines, no guaranteed life-extending potions...) monetary compensation sounds like a much better idea, even though it can't make up for 17 lost years.

If one has the right not to be punished unless one is guilty, has one the right

If one has the right not to be punished unless one is guilty, has one the right to the most complete and precise system of judgement, no matter how costful it might be?

The word "right" is generally used more broadly than this, so that rights may give way when a lot is at stake. Some philosophical literature may suggest otherwise -- people talk of rights as "side constraints" or "trumps" -- but when you look more closely, they too agree that most rights should be understood as giving way at some point (though for Nozick this point comes rather late: when there is the threat of "catastrophic moral horror").

How much needs to be at stake, and for whom, are matters that get built into the content of the right. Thus, in some jurisdictions property rights are quite strong (property can be expropriated only for an overwhelmingly important purpose) whereas in other jurisdictions property rights are much weaker. Even in the latter jurisdictions, the word "right" is not out of place, so long as an expropriation is based on more than just a showing that it would be better on the whole for this property right to be infringed. You do not have a property right in your car if you must compete on equal terms with others for its use (e.g., show that you need it today more than they do).

Most rights, both moral and legal, are then of this form: When you have a right to X, then no one is permitted to deprive you of X unless this is done for a purpose of such-and-such kind and importance, and unless compensation of such-and-such kind is offered.

Now let's apply all this to the right that interests you, the right not to be punished unless one is guilty. Here deliberate infringement is rarely at issue (though it may be for a judge who considers sending an innocent person to jail to scare off would-be law-breakers). Rather, the problem is probabilistic infringement, running a risk that we'll be infringing the right in question. A general prohibition on ever running any such risk would be very constraining -- you could never drive a car, for instance, because you're thereby subjecting others to a tiny risk of a right-infringing physical injury. Must we minimize the risk, by reducing the speed limit "as low as possible", for instance? I don't think so. But we must keep the probability below certain thresholds that are determined in part by the cost of lowering these thresholds even further.

In the punishment case, one cost is financial, the cost of sophisticated evidence collection, trials, and so on. But another very important cost is crime: As standards of evidence are raised, more guilty go free, possibly to commit another crime, and more people are insufficiently deterred from choosing a career in crime. Now in accordance with the above analysis, one enjoys a right not to be punished unless one is guilty only if one's interest in not being so punished is given greater weight than the interests of potential crime victims. This is suggested in the famous formulation by William Blackstone: “It is better that ten guilty persons escape than one innocent suffer.” Put more bluntly, it is better that ten innocent persons be victimized by criminals than that one innocent person be officially victimized by us. Now what the correct ratio is here, the ratio at which no strengthening of the protections of the accused are thought to be required by their right, this is a matter of dispute, and philosophy can hardly give a precise answer (such as "8.39:1"). What philosophers can say is that people enjoy something worthy of the name "right" only when this ratio is a good bit above 1:1. What empirical studies can add is that some groups in our society have not enjoyed even the right you speak of in even the weakest sense of the word. In many states, criminal justice has been practiced in ways that foreseeably led to huge numbers of African Americans being innocently convicted and very severely punished, and these wrongs could have been very largely avoided through reforms of these practices that would have had a negligible impact on crime rates or none at all.

In order for something to be a punishment, must there be an ending to it?

In order for something to be a punishment, must there be an ending to it? Hell, many say, is a punishment. But isn't the purpose of a punishment to try to make somebody learn that what they did was wrong and make them a "better person"? Many believe in eternity in hell, but how can this be? What is the point of "punishing" somebody forever, if they will never be able to do good again? If they will never be faced with another opportunity to be a better person?

A good question! As it turns out, not everyone agrees that the purpose of punishment is to reform people. In fact, some philosophers (Kant is perhaps the foremost) held that the only justification for punishment is that the person deserves it, and if we punish for the sake of making someone better, we fail to show proper respect for them -- we manipulate them for our own ends.

Setting the question of Hell aside for the moment, we can see that the argument you raise, if correct, would also count against capital punishment. But whatever one's views on the rightness of capital punishment, the widespread support it has in some places makes clear that many people see punishment as a matter of giving people what they deserve rather than reforming them. This idea, fleshed oout and elaborated, is often called the retributive theory of punishment, though it's important not to confuse retribution with revenge. Retributive theorists would maintain that the punishment must always be proportional to the crime, and so excessive punishment -- say, sentencing a petty thief to 20 years in prison -- would be wrong. Kant went further. He insisted that even in executing a murderer, we must respect his humanity. "His death... must be kept free from all maltreatment that would makethe humanity suffering in his person loathsome or abominable," Kant wrote. Whether executing someone is really consistent with respecting his humanity is open to debate, but Kant insisted that justice demands that the murderer's punishment must fit his crime, and hence nothing short of execution will do. Whether we agree or not, what's clear is that the aim of the punishment here is not to make someone a "better person" but to serve a particular conception of justice.

But now we can return to your worry about hell, and what we see is that no matter what our view of punishment, it's hard to understand how anything a finite human being does could earn them a never-ending stay in Hell. In fact, many religious people agree. Not all believers think that everyone outside of those who confess the proper doctrine are destined for an eternity of torment. Those who do have a conception of punishment that reformers and retributivists alike are bound to find puzzling and repugnant.

Could one argue that parental discipline constitutes mental/emotional abuse in

Could one argue that parental discipline constitutes mental/emotional abuse in certain cases? At what point does punishment (ignoring physical punishment for this question) become abuse?

That parental discipline may constitute a form of abuse depends entirely on what you accept under the label of "discipline". Consider for example a family in which following some religious practices - like preying before supper, or not eating certain kinds of food - is considered as part of a discipline that children are obliged to follow, and a 10 years old child (that is, someone who is cognitively able to take at least partly autonomous decisions on her moral preferences, even is she still doesn't have reached the institutionally established "age of reason", usually 16, 18 or 21 according to the countries) who refuses to comply. In this case, I would consider a sanction of her behaviour as a form of abuse. Punishing her for not complying to a rule she doesn't want to endorse because she finds it incompatible with her ideas and moral feelings is a form of abuse.

Abusing children means prescribing them a system of rules of disciplines without taking their stance and thinking about what is reasonable to accept now and in their future and what is questionable from their point of view now and in their future. Of course it is very difficult to evaluate what are the cases in which we have the right to act in an authoritative way with our children and cases in which we haven't this right, because given the asymmetry in experience, cognition and moral development between our children and us, very often we must force them to comply with practices and norms whose interest and value they cannot immediately understand.

One may argue that paternalism - that is, restricting the freedoms of dependants in what it is claimed to be their own interest - could serve as an appropriate moral test for parental discipline. But I don't think it suffices. In many cases we have the right to decide on behalf of our children in our own interest: we may for example proscribe some of children's actions or behaviours by appealing to the respect they owe us, that is, to the regard they should have to our way of living. So paternalism doesn't suffice to discriminate between legitimate and illegitimate coercion that we exerce on them.

A more plausible moral test for discipline would be the following: we can legitimately impose children to comply with some rules and practices if we consider our attitude towards the values these practices help to promote and the reasons why we endorse them. If the values these practices help to promote (hygiene, respect, instruction etc...) are values that we share and accept on a reasonable basis and not simply on authority, and furthermore we think we will be able in the future to articulate a reasonable explanation to our grown up children on why we decided to force them in such a way when we had control on their lives, then we can legitimately impose a discipline.

A different question is when punishment for not complying with parental discipline can be considered an abuse because, for example, it is too severe. Here I think we should take a long term perspective and balance the corrective effects of the punishment on education with long term effects of the punishment on the emotional and moral development of the child. For example, public humiliation, a form of punishment that was very common in schools and families, should be avoided, because its long term consequences may be extremely negative, whereas any form of punishment that involves taking the responsibility of an action (like for example learning to admit a fault), can have positive consequences on the way the child will conduct herself in the future. It will be useful also in this case to take the children's stance and try to "simulate" their understanding of the causal path which goes from their action to the punishment.

From a moral Christian point of view, I cannot understand the idea that we

From a moral Christian point of view, I cannot understand the idea that we should punish anyone. In America, which is a highly Christian-dominated society, there is little resistance to capital punishment from the "right wing." My understanding is that Christians are not supposed to judge. God will judge everyone when their time comes. Isn't Christian morality about tolerance and acceptance, and not revenge? "Turning the other cheek?" "Love thy neighbor/enemy as thyself?" Are Christians simply turning a blind eye to this action?

There is indeed a tension between capital punishment and the teachings of Christ. One can ease this tension somewhat by highlighting the contribution of penal institutions to the protection of innocent people, who are safer when criminals are taken off the street and potential criminals deterred. This does not justify the death penalty, nor our kind of prisons in which inmates are routinely raped and abused, but it does help justify penal institutions of the kind we know from the more civilized states.

I see much greater tensions between Christian teaching and many other policies we pursue, especially internationally. We pressure very poor countries to undertake “structural adjustment programs” -- cutting public funding and raising fees for basic education and health care -- so that they can better service their loans to our banks, which loans are often taken out by brutal dictators who use the money we lend them to buy the arms they needed to stay in power. We allow our banks to help such tyrants and their supporters to transfer embezzled funds into the international banking system. We pressure very poor countries to enforce the intellectual property rights of our pharmaceutical firms by ensuring that their populations have no access to generic versions of medicines on which one of our companies has a patent. We tolerate severe poverty of nearly half the world’s population, which kills about 18 million people annually including over 10 million children, even while such poverty could be eradicated at half the cost of our military budget. We impose severe sanctions on Iraq, and later a botched occupation, each of which have needlessly killed hundreds of thousands of Iraqi civilians. We refuse to intervene in Rwanda, Sudan, and Myanmar, where enormous massacres and suffering could have been prevented at minimal cost. We detain thousands of poorly selected terrorism suspects indefinitely without charge or trial while subjecting them to every kind of recreational and premeditated abuse. Much more than our penal institutions, such policies -- often associated by their perpetrators and supporters with Christian language and values -- are an indelible insult to Christ and His teachings.

We are a Christian-dominated society in that there is a lot of talk about Christ and His teachings. We are not a Christian-dominated society in that many of our policies are plainly incompatible with Christ’s teachings and perpetrated by people who plainly have no expectation that they will ever have to answer to Christ for what they did to further their political ends while invoking His name.

In what sense is being put to death a punishment? How we can talk about things

In what sense is being put to death a punishment? How we can talk about things like "suffering" or "loss" if a person is dead (i.e., not conscious)?

Of course, murder is not a victimless crime! But how can that be, Alex asks, if the victim no longer exists in order to suffer the harm that has been done to him? If you must exist in order to have interests, then how can a dead person’s interests suffer as a result of his death?

To see the harm that is suffered by a murder victim, let’s think first about what it means to be harmed. If I were to harm Harry, what sort of thing would I have to do him? Intuitively, when I harm Harry, my actions make him worse off than he would have been had I not acted as I did. So when I spread vicious gossip about Harry, I have harmed him because, had I not spread the vicious gossip, his reputation would have been intact, and he would have been well-respected in his community, loved by his family, and able to complete more easily certain projects about which he cares deeply, projects that require the good will and cooperation of others. Because of my vicious gossip, Harry is now a social outcast, unloved and unaided.

So let’s try out this definition of harm:

X harms Y if and only if X’s action A makes Y worse-off than Y would have been, had X not performed A.

But now, it seems, we have a problem. If I kill Harry, how can we compare the state that Harry would have been in, had I not killed him, to the state that he’s now in, namely, dead? Since he is dead (and we’ll suppose, non-existent), he’s in no state at all. How can we compare this "non-state" to his state he would have been in had he been alive?

The answer to this puzzle, I think, is this. If Harry had survived, he would have attained all of the goods that generally come with living– pleasure, deep relationships with others, philosophical knowledge . . . (complete this list with whatever you count as genuine goods). Of course, had he lived, it’s likely that he would have had some hard times, too– some pain, frustration, heart-break, and so forth. But so long as his life would have been worth living for him, the goods that he would have had, had he survived, would have outweighed the bads that he would have had, had he survived. When I kill Harry, I prevent him from attaining these goods.

When we attempt to figure out the harm that Harry has suffered when I kill him, we should not compare Harry’s state after his death to the state that Harry would have been in, had I not killed him: for the reasons that I give above, such a comparison is impossible. Instead, when we attempt to figure out the harm that Harry has suffered when I kill him, we should compare the totality of goods that Harry would have had over the entirety of his life, had I not killed him, to the totality of goods that he had actually attained in the life that I cut off. If his life would have been worth living, then I did indeed harm Harry when I killed him: I deprived him of all of the goods that he would otherwise have had, had I not killed him.

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