The Justification of Punishment: An Internal Critique of Retribution

In my last post I discussed why I thought that retributive theories of punishment should best be seen as aiming at a sort of ‘communication’, and that this might make them seem queer compared to other theories.

I realised that it might be worth saying more clearly what sort of communication I take retribution to be. In essence, the conversation I think is imagined to go like this: person X performs action A, and in doing so ‘says’ that action A is a reasonable to do (for them, on that occasion, at least). But! Action A is in fact ‘bad’, perhaps because it makes someone else die. Consequently person X’s initial ‘statement’ is false. By punishment, we do something ‘bad’ to person X (forcing them to become aware of some ‘badness’), and present this as directly tied to action A – so they now ‘perceive action A as bad’.

This account may seem very sloppy, but I don’t think it’s sloppier than the reality – the key concept here, after all, seems to be ‘bad’, which is not known for its precision. We can certainly attempt a critique of this, and I will in just a moment.

But first, notice how subtly different sorts of motivation can be very close to each other here. The punisher is motivated by a desire to ‘reaffirm’ that action A was bad, but this can be for a range of reasons. It might be out of concern for ‘moral law’ in the abstract, or for divine law. But it also might just be about personal status. Say action A is a form of ‘disrespect’ against me. The statement being made then (setting aside ambiguities of interpretation) is that I am not worthy of respect.

The motivation to ‘punish’ would then be not so much ‘moral’ as just a desire to affirm that I am worthy of respect. This is sometimes said pretty much literally: “I’ll teach you a lesson!” What lesson? “Nobody messes with Alderson Motherfucking Warm-Fork!” Is this motive ‘better’ or ‘worse’? An entirely open question – for the circumstances that make someone feel disrespected are so varied.

But let’s get to the point. Does this idea of the retributive ‘lesson’, which seeks to communicate to person X that ‘action A was bad’ by making it the cause of suffering for X, does it make any sense? Should it be endorsed?

There is an obvious point of internal critique, that is, criticism on its own terms. On the one hand, it must aim to have X actually believe that A was a bad action – for what else can be the goal of ‘communication’? But on the other hand, its method is to make X suffer as a result of A, as a kind of ‘substitute’. But the two are largely independent – not only can you have one without the other, but they may at times even undermine each other.

We might put it like this: the relation between action A and its being bad is a logical relation – the nature of the action makes it a wrong action (yes, I am assuming a robust moral realism – at least for the sake of argument). But the relation between action A and its punishment (and the ‘badness’ of that) is a causal one.

If you have the former – if X is conscious of how wrong A was, and feels terrible, and is sincerely committed to atoning, etc…. – does the punishment add anything? Perhaps it adds reassurance – for protestations of remorse could always be insincere (even if they are meant sincerely). And perhaps for certain actions there could rarely be ‘adequate’ remorse – if I maim someone so that they are blind for the rest of their lives, I’d have to be super-human to feel as bad about this as they do for all that time (or perhaps if I did, it would leave me so pathologically, incapacitatingly, life-destroyingly miserable that punishment would be superfluous). But if we set aside these cases – in the abstract, it’s certainly arguable that punishment here is unnecessary.

And conversely, if we don’t have that remorse and recognition of ‘the moral truth’, does punishment get us it? Perhaps in a few cases, perhaps hypothetically, but on all the evidence, clearly ‘no’. Indeed, punishment often does the opposite – ‘hardens’ person X, reinforces their alienation from society, ‘teaches’ them nothing but how to avoid getting caught.

So it seems, then, as though punishment’s retributive function must aim at an actual ‘communication’ which punitive methods are generally highly ill-suited to acheive. That doesn’t paint it in a good light. Why, then, does it have such popularity – why do even I feel certain retributive intuitions?

I think to answer this, we would need to look again at different forms of punitive motivation – different sorts of ‘badness’ that punishment aims to communicate. Consider again the badness of disrespect – the desire to ‘teach’ someone that “you don’t mess around with Alderson Mother-Fucking Warm-Fork”. What is it about that this Bad-Ass Dude that demands respect?

Partly it’s that he is a rational animal, a liver of a life, and deserves respect simply as such. But also, it’s his Bad-Assery, his command of the situation, his complete knowing-what-he’s-doing – in a word, his power. And now, things start to make a bit more sense. This kind of ‘punishment’, avenging a personal slight, makes much more sense – because its content doesn’t just demand remorse but also fear, and material punishment can certainly instil that. I said that an action’s wrongness follows from it logically, and its punishment only causally: but (given certain assumptions) respect for my power follows logically from that causal link – you will respect me because I am capable of punishing you.

In short, retributive punishment makes a lot more sense when the ‘badness’ that is to be punished involves the disrespect of someone’s power. Of course, the ‘moral’ element is still needed – because what is more delicious than to exercise power over someone with a clear conscience? But where respect is demanded both for moral legitimacy and for actual power, retributive punishment can avoid its own internal contradictions.

Who demands respect for both legitmacy and also power? The usual suspects spring to mind – the state, God, parents, and the various other positions of authority set up in this patriarchal world. So they might be expected to value retributive punishment more than would be warranted by its shaky coherence (though of course things are not always quite this simple).

But is it only them? I don’t think so. The opposite people, those with the least power, might also be expected to demand more of it. In this case it might even be stronger, because there may be less ‘cultural support’ for them to simply believe and assure themselves that what was done to them was in fact wrong – it may be that society itself disagrees and tells them they deserve no better.

Remaining confident in, for instance, the knowledge that the man who battered you for years is a wicked and contemptible person, might take a lot of effort if all around you people are explaining it away or directly justifying it. More broadly, remaining assured that the people who robbed you of what little you had left were disrespecting your profound human dignity may be harder when all around society is ‘saying’ implicitly that you have no dignity and are worth very little.

On the other hand, a good beating with a baseball bat is real and tangible. It doesn’t take mental effort to keep believing that it happened – once you’ve delivered it, it just exists. And if your rapist is never going to be punished any other way, nor show remorse or attempt to make reparations, that may be the best that’s available. A bandage over the open wounds of an unjust world.

The reason I bring this up is to temper the overall evaluation I want to give of retribution. I don’t want to say that each and every retributive impulse is illegitimate. I don’t want to say that nobody should ever act vengefully – am I going to come down from the heights of blog-cloud-land and tell everyone who’s been wronged to always give up the hope of revenge? Perhaps I could do that if I thought that all wrongs will be righted somehow, without retribution, in another life, but I don’t.

But I do want to say that retribution as a phenomenon is undesirable – that we should aim at a situation where universal forgiveness became not merely an abstract demand but a real possibility. We certainly shouldn’t take retributive ‘justice’ as an eternal principle, something that must be maintained throughout all changes in society or projected onto the supernatural being.

So that is my limited defense and limited critique of retribution. In my next post I’ll try to look at it what sorts of things might affect or contribute to changes in society’s collective vengefulness.

3 Responses to “The Justification of Punishment: An Internal Critique of Retribution”

  1. Mercury Says:

    Aren’t you just distorting your new vision of why punishment is an end with the old arguments of not being fit for purpose, or that purpose being unjust?
    You seem to have set up a new suggestion that punishment is part of communication, and then having set up this idea on your own, prove that this communication is misguided.
    But you do this by intertwining it with the old concept of preventative punishment: of communication being for another purpose.
    As I have said many times, if we try to imagine that everything is done for some other motive then we will encounter all sorts of strange ways to argue that we are not achieving our aims nor acting rationally and effectively.

    Having said that, punishment could be considered a means to ensure that no-one who commits a crime can possibly benefit from it. Remorse can be faked and is inherently unknowable. It furthermore is unpredictable, subjective and, assuming a free agent, controllable. It is therefore not a reasonable end-point.
    Crime and punishment are actions, and entirely separate from emotions.

  2. Alderson Warm-Fork Says:

    “Aren’t you just distorting your new vision of why punishment is an end with the old arguments of not being fit for purpose, or that purpose being unjust?”

    No, because it’s not a means-end purpose. Communication isn’t (inherently) for a purpose – it has its own standards of success, which are not instrumental – but if I’m right then retribution is still dubious (though not entirely worthless) by these stands, with the qualification that it can be more successful if the intended content is more about legitimate power than mere rightness.

    “You seem to have set up a new suggestion that punishment is part of communication, and then having set up this idea on your own, prove that this communication is misguided.”
    Well, firstly I don’t say it’s entirely misguided, but it is sub-optimal. Secondly, of course I might have analysed the retributive motivation incorrectly. But I’m not familiar with a better motivation which doesn’t just say ‘we do it because they deserve it’. I started from the datum that there’s something a bit queer about retribution that seems to make it hard to integrate into moral theory, and offered what seemed to me perhaps a good way to make sense of this. Then I traced out the consequences.

  3. The Psychology of Punishment: What makes us retributive? « Directionless Bones Says:

    […] The Justification of Punishment: An Internal Critique of Retribution […]

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