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Yeah But Still

Great stuff. A central question here concerns the nature of the story you're telling: are you providing a historical account of how justice arose (i.e. as a kind of revenge insurance?) Or are you grounding the authority of justice in the right to revenge? Or, perhaps, are you suggesting both of these things?

Regardless, either way, the problem that jumps out at me is this: if revenge is, as you say, essentially personal, laden with sentiment, contextual, etc., then the transition from Sally's ordinary revenge to government-administered revenge loses that essential feature. Indeed, rather than see the justice system as extending the right to revenge or as somehow grounded in that right, we might think that the right itself has been appropriated in order to augment the power of the modern state. In other words, the modern state has power because it alone is granted the right to punish, and the desire of ordinary people for revenge is re-directed towards support for the state that can guarantee the punishment. But the ordinary person loses something critical in this transaction, she loses the right to inflict the revenge herself in the manner she sees fit. What is initially a particular, personal, sentiment-laden act becomes the passive observation of legal system going through the motions.

Finally, as I'm sure you know, your thought echoes Nietzsche:

"Let me pose the question once more: to what extent can suffering be a compensation for “debts”? To the extent that making someone suffer provides the highest degree of pleasure, to the extent that the person hurt by the debt, in exchange for the injury as well as for the distress caused by the injury, got an extraordinary offsetting pleasure: creating suffering—a real celebration..." (GM 2.6)

tomkow

Thank you for your thoughtful comment!

I am not offering any sort of genetic story but am rather, as you say, trying to describe the moral ground for the authority to punish.

And I am certainly not defending the status quo of any existing regime of Criminal Justice. In fact, I think it is one of the merits of this way of looking at things that it gives us a way to criticize the justice system as betraying the moral foundations of its authority. And I am delighted to see you have immediately put it to just this use.

I am not sure I agree with you that surrendering the right to revenge to government authority is always inherently a bad thing, after all revenge is supposed to be best when served cold. But I agree that there is a very great danger that, in hands of a Leviathan state, punishment can lose its fundamental human purpose.

Thus, while I am quite prepared to accept that the abolition of capital punishment might represent a progress of the human spirit, it seems to me clear that the replacement of public executions with private ones represents the reverse.

Thanks too for the Nietzsche quote. I didn't know it. What a nasty piece of work he was! But wise. May the same be said of us.

Yeah But Still

OK, great, I think I understand the idea now. And the "revenge insurance" theory has the virtue of being a plausible and psychologically realistic story about why the state's right to punish the guilty should exist. As you note, theories that try to ground this right in general utility or in the guilt of the perpetrator fail on both accounts.

The question, then, is this: is it rational for the average person to give up their right to punish in exchange for the assurance that any attacker will be persecuted with all the state's resources? Note that your "revenge insurance" case contains one disanalogy, here: the insurance company does not prohibit you from exacting your own revenge, should you survive. The modern state, on the other hand, does precisely this: as I understand American law, we are only allowed to injure attackers in order to prevent the attacks from taking place.

In short, in order to make the analogy work, The Agency will also prohibit you from exacting your own revenge, and will punish you if you try. At this point, it starts to look less and less rational for an ordinary person to agree to all of this, though it is still, as you say, permissible for her to do so. But if the state's right to punish is meant to be rationally grounded in an individual's right to revenge, then it must be rational for an ordinary individual to give up their right.

Here, I am concerned that we are interpreting brute force as rationality: powerful states may have seized the right to punish from individuals, and as such, there may be little in the way of a grounding-relation to speak of. However, that does not mean that we can't change things, that we might use your theory to amend the ways in which punishment occurs.

tomkow

I think you have been reading too much Nietzsche.

On anybody's account: government requires a virtual monopoly on the use of force. In return for the benefits of government we surrender to the government, in large part, the privilege of enforcing our rights. If it is a good government, it can be a good bargain.

But it is true that there are costs. For example, as you complain, we loose the satisfactions of settling our own scores. On the other hand we also get protected from lynch mobs and bullies stronger than ourselves. Nietzsche didn't get this because he liked bullies.

George Oppel

Thank you for this fascinating argument. I'm pretty much in the "punishment is immoral, can only be justified as a lesser evil" camp, but I'm interested in the competing perspectives. If you don't know it already, William Miller's "Eye for an Eye" gives a very non-metaphysical and often amusing account of the lex talionis. Miller has no problem with revenge as a principle of justice, whether you take justice to be punitive or compensatory (the two are related). Then there's Rene Girard's treatment of revenge in the first chapter of "Violence and the Sacred." For him, there is no difference in principle between state legal systems and "atavistic" notions of sacrifice and trial-by-ordeal. Revenge is the core idea in every attempt to prevent violence. The state just rationalizes revenge but in such a way as to conceal its conceptual and historical connection to primitive religion. These two non-philosophers help to shore up your case, I think.

grafhuelshoff

Hobbes believed we have a right to defend ourselves by any means against even innocent threats. The most fundamental natural right is to preserve one’s life against the threat of violent death. Naturalistically considered, one's rights extend as far as one's power; the power to preserve our autonomy and agency, even preemptively. But I can get no purchase on the notion of retribution/revenge before the fact. Deflection is not revenge, and thwarting one’s likely demise is not retributive.

The intention behind potentially calamitous acts, I hold, is not the decisive criterion for whether they, qua life-threatening, are to be considered evil. It is quite possible to do evil inadvertently, and in spite of the best intentions. (As some wisenheimer once observed: the opposite of ‘good’ is ‘good intention.’) Evil is suffered as a consequence of actions regardless of intent. Someone who wants to save me may wind up killing me; in which case I suffer the ultimate evil that can befall an organism. You’re thinking is resolutely Kantian on this score.

The unwitting catalyst of my demise is still culpable, both from the community/tribe’s perspective, and, assuming he has a conscience, from his own. How he is to expiate [be punished for] his guilt is a matter of specific convention/consensus, but that he deserves some punishment seems self-evident.

The law enshrines the right of preemptive self-defense against intrusion on private property; one is legally permitted to kill intruders. But you don’t take up the distinction between positive-legal right and natural right. You’re left talking about permissibility while invoking we-know-not-what kind of higher authority that would give permission. Assuming laws reflect a consensus of the community, are you suggesting individual conscience is the alternative source of our notions of justice/decency?

If only the laws of different tribes decide what is permissible, we have merely ducked the question of its source. For every specific culture appeals to the standard of justice per se, not the standard unique to it. In this fact is grounded the necessity of something like natural right.

I’m not sold on your “prudence is not morality” assertion. You certainly haven’t argued for it. I say prudence, qua calculation of what is expedient in the context of the permissible, is very much a part of the deliberative evaluations that constitute moral discourse. Prudence is morality in action, so to speak.

Excellence of character is the datum of the moral, and we ascertain the moral tenor of a person by the choices he makes, as reflections of the decisions he reaches through a deliberative process that is in part calculative-instrumental.
In the case of the expectant rape-victim your query about moral permissibility [of self-defense] strikes me as a topic taken up post facto by a third party, by an on-looker rather than the victim-to-be.

In the exigence of the moment and no foreknowledge of her actual fate Sally must calculate the course of action with the best odds of eventuating in her survival, not with whether or not her preemptive assault will be considered foolish, desperate, misguided, “impermissible” or what have you. Her preeminent and primary concern is prudential; it is with efficacity, not goodness, legality, or justice as determined by some transcendent criterion/source of authority.

To imagine Sally lies there disinterestedly deliberating about what is permissible, let alone about which considerations of an ethical nature ought to inform her course of action, is absurd: self-defense is the most primitive, pre-reflective, instinctual behavioral mechanism that animates organisms: that of fight-or-flight. Surely you don’t mean to suggest that moral evaluations--the process whereby we theoretical types make our conclusions about what is/ought to be allowable--disregard that reality? Or perhaps that is what moral philosophers in fact do, painting their shades of grey on grey: they don’t give guidelines to embodied existences, but make assessments impartially, after the fact. In this sense they pursue ends that serve no one’s interests but their own desire to entertain ideas indefinitely. I would defend their right to be thus useless to the death, but we ought to at least acknowledge the distinction between theoretical vs. practical [applicable] uses of reason. In other words, questions of justice are not obviously pragmatic. The multitudes get by just fine obeying certain divinely sanctioned commandments backed up by the force of law. We don’t need them to start debating about what is just. Where would that lead?
“Morality” is a narrative [as well as an evaluative discourse], and what pertains to courses of action [motives] in cases of emergency and what to judgments rendered retrospectively, are discontinuous magnitudes. Its the difference between a theoretical and practical deliberative process. God knows its easy to be impartial about ‘moral permissibility’ in the first instance. In any case, your conclusions in Sally’s case are anything but controversial.

Whether the falling man is villainous or innocent also cannot be known by his imminent victim. His natural right is to preserve his existence against the threat of the falling body.
The cases you cite are instances of self-defense; preemptive self-defense against perceived threats. It’s absurd to conclude that it is better for Sally not to inflict hurt on her assailant because there will then be one less injured individual. There’s nothing new about the right of preemptive self-defense. In fact, it’s as old as the hills. And I’m not convinced any such defense can logically be characterized as retaliatory, given that acts must first be completed before vengeance can be sought. And what is punishment, as justice enacted, if not vengeance?

You toss around the notion of ‘right’ without examining it closer. What is a “right of compensation?” for instance. What made it possible for something like a right--a concept that emerged at a specific time in history--to become the common currency of moral discourse, displacing the notion of duty that had reigned supreme since the dawn of communal living?
What would change if instead of casting the moral dilemma in terms of permissibility and rights [for what is a right if not a permission?], one conceived of self-defense in terms of duty? Surely we each have a duty to ourselves to preserve our existence and obviate bodily harm. This doesn’t, of course, change the fact that our evaluation of moral character as reflected in choices must weigh one duty/right against another. But it does seem that questions about the ultimate source of a duty to self-preservation are less spontaneously posed than queries about the source of the corresponding right. At least not in the naturalistic perspective that does not lose sight of the fact that human beings are organisms first and last, not aspiring angels.

Conspicuously absent in your discussion of retribution and the pedagogic function of punishment is a notion that must be considered the very essence of the latter, namely expiation [of guilt]. A crime creates an imbalance between the individual and the ethical community, from which the criminal excludes himself by his trespass. He must pay a penalty; if the laws of the land are to have any force they must be enforced. Justice exacts some measure of suffering, but not as an end in itself. The offender expiates his guilt only if he accedes to his punishment as just. There is no other way for him to rejoin the community, morally speaking, than to accept its disapproval as his own self-disapproval.

What would a non-arbitrary calculation of sufficient punishment be? Is arbitrariness the same as randomness? How can a choice of means be random? Certainly those who set sentencing guidelines are guided by some notion of proportionality and not drawing lots. That process too is prudential-reasonable, if not infallible. We can’t really ask for more than that.

How, you ask, is being annihilated to suffer a harm? How about by virtue of the fact that one’s life has been taken, a future annulled? Not sure what the mystery is here. Obviously, to suffer a harm continuously one must exist, but it does not follow that by no longer existing because one has been murdered that one has not been wronged. [You’re not very clear about individual vs. collective perspectives in general.] To the notion of a person belongs his loved ones, property and obligations [as in to repay loans]: his estate in the broadest sense.

I won’t get into revenge insurance, only to note that those who subscribe to the notion of a last judgment invest in something comparable: the impossibility of escaping, if not punishment, a day of reckoning.

What does “the value of retaliation to any of us will depend upon our sentiments” mean? How about another [shorter] article analyzing it for us? It suggest an emotivist theory of value that has been soundly refuted. Your conclusions here are, as expected, a mixture of a moral/cultural relativism and emotivism. How are we to be comforted by a conclusion that is, at best, problematic [viz., that justice is founded in revenge as upon a bedrock of human psycho-logy]? That conclusion that has not been demonstrated, merely stipulated. If it sounds disillusioning, the reasoning seems to be, it must be the unvarnished, painful truth of the matter. Thus when it is appropriate to be impartial, you show yourself incapable, or unprepared, for it’s demands. You do justice and injustice.

Justice cannot be explained by reference to deeply rooted emotions--revenge, mercy, compassion. It is not vengeance, or revenge, but balance: a ratio which we, as reason-able citizens, aspire to gauge and adjust, guided by our ideals of truth and the good. So instead of founding justice on our motivations, I would enjoin you to envision the ends we seek to actualize in pursuit of just proportions. Or at least to ponder the difference, which presupposes the all-decisive divide between early modern [Hobbes, Spinoza] naturalist vs. classical-functional/teleological conceptualizations of the Nature we call 'human.'

A more general comment: you have a prodigal ability to articulate ideas, and I am a great admirer of that too rare capacity, but you might want to limit yourself to one problem at a time and explore it in-depth, rather than free-associating at such length. Variety may be the spice of life, but it is not the virtue [art] of philosophical discourse. That would be concision. Also, as stimulating this article was, it takes too much for granted to be radical.

Macdonald Rich

Very well done. As the fact of retaliation gets *publicized* (which would happen when our institutions got involved), then the perp becomes aware that he will be retaliated against. Which makes it a deterrent as well.

That seems to be an additional support for your framework. I'll leave it to you to determine if it changes anything logically :-)

Mark Briard

I very much enjoyed reading this. I agreed with all your claims about what was morally acceptable in each of the scenarios -- and without hesitation for any of them. And your reasoning looks right to me -- except for one little thing: Innocent Falling Man (the first). You didn't actually say where you stood on this point (or if you did, I missed it), but your later argument seems to rely on it being morally unacceptable to disintegrate the innocent falling man.

I (in agreement with Nozick) say that it is morally acceptable for Sam to disintegrate the innocent falling man. (But I agree with you regarding the second innocent falling man -- shooting him does not save Sam, and so is not morally acceptable.)

A right of retaliation does not explain that intuition. And since it doesn't, it's not clear to me that I need a right of retaliation in order to explain my (other) intuitions. Does your argument work against Nozick (and me)? Can it be modified to do so if it doesn't? (I'd like to be able to explain why it's morally legitimate for me to bow to (and, more importantly, force other people to bow to) a national system of criminal law and judicial punishment. I'm just not sure I'm there yet!)

tomkow

Thanks for your comments.

You'll find my view on the first falling man case and other examples of self-defense here:

http://tomkow.typepad.com/tomkowcom/2011/03/self-defense.html

tomkow

Thanks for your comment.

Yes, I agree, reliable mechanisms of retaliation likely will have a deterrent effect.

I don't think that by *itself* deterrence is a sufficient justification for punishment (after all punishing falsely accused people might also have a deterrent effect) but if the punishment is already permissible on grounds of retaliation then deterrence becomes another argument for it and one that can be legitimately taken into account in formulating public policy.

tomkow

Thank your for your comments.

It is always hard in philosophy to know what needs to be argued for and when but I have written elsewhere about some of the issues you raise about the foundations of morality.

You can find some of these here:

http://tomkow.typepad.com/tomkowcom/retributive-ethics/

Soupdog

Magnificent stuff. I think this conclusion can be reached from a number of angles, but this one is about as good as any--with the possible exception of Nietzsche. The conclusion at any rate is decidedly Nietzschean, as one commenter noted. And while it's possible that that commenter has been reading too much Nietzsche, I'm not sure that you, Tomkow, have been reading enough. First, not to credit Nietzsche with the basic idea is a minor omission. But the idea that Nietzsche didn't understand that governments can be good things partly because they protect people from lynch mobs and bullies because he liked bullies is pretty silly. I realize it's just a response to a response, but may I just recommend, in case you haven't done so, reading Nietzsche's major works carefully (and/or Bernard Reginster's excellent interpretation of his overarching project, The Affirmation of Life).

Thanks again for a great post. If only the average article in professional philosophy journals were half as good as this.

tomkow

Thanks very much for the kind words!

I have read some Nietzsche. You'll find a criticism of the Nietzschean program in The Good, The Bad and Peter Singer wherein I accuse Singer and Nietzsche (quite a pairing!) of sharing a mistake about moral value. I'd be interested to learn what you think of that argument.

My general view of Nietzsche is that, while his moral theory was mistaken, his heartless-ness was in the right place


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