A Few Short Steps to the Gallows

Beware gentle reader! To pass beyond this point is begin a quick march to a place you would rather not go. Be prepared to make tough choices. Watch your step but try to keep up with the group.

We begin with a version of Robert Nozick's "Falling Man" case. 

INNOCENT FALLING MAN
Sam is standing at the bottom of a well when a large man accidentally falls in at the top and hurtles down towards Sam.  Sam can't get out of his way. When he lands the falling man's bulk will certainly kill Sam instantly but, with Sam cushioning his fall, the falling man will certainly survive. Sam happens to have in his possession a ray gun which is capable of vaporizing the falling man, saving Sam's life.

Is it morally permissible for Sam to vaporize the fat man? Nozick thought so. Yes, the falling man is innocent. He does not want to kill Sam. But Sam is innocent too and he has a right to self-defense. That was Nozick's point.

Not everyone agrees. Some philosophers think you don't have the right to defend yourself against innocent threats. So let us roll back and start at what I hope is bedrock common ground.

VILLAINOUS FALLING MAN
Sam is standing at the bottom of a well as before. But this time the large man jumped in deliberately.  He wants to kill Sam; believes that his falling bulk will do the job and is confident that — with Sam's body cushioning his fall— he will walk away unharmed. Sam knows all this and he still has that ray gun.

Is it morally permissible for Sam to vaporize this falling man?  Surely!  This is attempted murder. Sam would be acting in self-defense.

If you don't believe you have the right to self-defense—ever— you should certainly stop reading now and, well... best of luck to you in your future endeavors.

Are they gone? Good. Let us proceed.

INNOCENT FALLING MAN II
Same as the first case: Innocent man hurtling towards Sam. But now Sam doesn't have a ray gun. He has an ordinary gun. The falling man would be hard to miss so Sam can be confident of wounding him; perhaps fatally. But this won't stop the falling body or prevent Sam's death.

Knowing all this (somehow, suppose) may Sam use his gun?

Notice that if Sam does shoot in this case we cannot properly describe what he is doing as "self-defense". Shooting doesn't defend him from anything. It would be more accurate to call it retaliation — preemptive retaliation — for the harm the falling man is about to inflict on him; is this permissible?

I myself don't think so. The falling man is innocent. Hurting him is not going to save Sam's life. For him to deliberately harm this innocent person seems to me gratuitous, spiteful and morally wrong.

If you disagree with me about this— if you think it is permissible for Sam to retaliate however innocent the falling man may be— then you can stay with us but I won't be talking to you in what follows. Try not to get too far out front of the group (and stay well back from me.)

Next step:

VILLAINOUS FALLING MAN II
The same as VILLAINOUS FALLING MAN except that Sam now has only the ordinary gun. If Sam shoots he will certainly injure, and perhaps kill, the falling man. The falling body will still kill Sam, but the villain won't walk away unscathed.

Given that this falling man is trying to murder him, would Sam be doing something morally wrong if he were to shoot in this case?

What do you think? Okay, settle down. I can hear some of you complaining (there are always some) about these fanciful philosophical "what ifs". How can you be expected to have robust moral intuitions in response to these unrealistic fables?

Alright. Gloves off. Remember you asked for this.

RAPIST
Sally, a small frail woman, wakes in the middle of the night. There is someone in her room. Instantly she realizes who it must be.

In recent months her community has been terrorized by a serial rapist-murderer. His modus operandi has been publicized by newspapers and television. He tortures, rapes and kills his victims. And it is well known that the more his victims resist, the crueler his attack. Sally has seen an interview with the only victim to have managed, barely, to survive her injuries. She credited her survival only to her extreme passivity and obedience to the rapist's commands. 

Sally cannot escape. She is alone. She can seem him now: a huge, muscular brute. She could claw and kick at him, and perhaps inflict a little pain, but she cannot hope to stop him.

Realistic enough for you?

Now there is a difference between this case and last FALLING MAN story. The difference is that Sally has a positive, prudential reason not to hurt the person who is going to harm her: she will improve her chances of survival (slightly) by not fighting back. So, prudence dictates that Sally should lie back and accept her fate. But prudence is not morality. Our question here, as before, is: is it morally permissible for Sally to try to harm the rapist even though she knows that doing so will not deter him?

Before you answer, make sure you understand the question. You are not being asked here for general crime stopping tips or proscribing for every possible case of rape. The question is whether or not it would be morally wrong for Sally, this particular woman, to hurt this rapist, this particular monster, before he kills her. And be careful not to read into the story elements that aren't there. Maybe you think, or want Sally to think, that she can scar her attacker in ways that will make it easier for the police to apprehend him after her death. 
 Maybe you think, or want Sally to think, that by fighting the rapist she may deter him from future crimes. Sorry, no. This is my story and none of those things are true in my story.

So, what do you think?

My own view is that it is morally permissible for Sally to try to hurt the rapist. I think she may fight him tooth and nail. She may bite, kick, and scratch. She may try to claw his eyes out. I do not think it would be wrong for her to do so even if she knows to a certainty that it will not save her.

And let me be clear: I am not just saying that it would be understandable if she fought back. I am not saying that, given her extreme circumstances, violence on her part is forgivable. I think there is nothing to forgive; if Sally manages to harm the rapist, she will not have done anything wrong.

If you do not agree— If you think it would be every bit as wrong for Sally to try to hurt the rapist as it would be for her to attack some random, innocent stranger on the street— then you need read no further. Thank you for playing.

The Problem of Retaliation

If you are still reading then I will assume you agree with me about Sally's case. And I assume we must likewise agree that it would be permissible for Sam to retaliate against the villainous falling man. You might not think it okay for Sam to shoot to kill— you may draw the line at killing— but if it is permissible for Sally to wound her attacker how can it be impermissible for Sam to do likewise?

If we agree about this, then we have a problem, you and I. Prima Facie, it is wrong for anyone to hurt another person without a justification. But in the cases we have been considering that justification cannot be self-defense. Neither can we find justification on utilitarian grounds. At the end of the day, if our victims strike back, more people (albeit villainous people) will be worse off than if they do nothing.

We seem to have discovered a new right: A Right to Retaliation.

Where does this right come from? What justifies this kind of harming of others?

So far as I can tell, a right to retaliation of the sort we have been considering has gone mostly unnoticed by philosophers. And while philosophers have had plenty to say about when it is or isn't morally permissible to harm others, I think the tradition contains only one possible explanation of why retaliation is okay; though it is not an explanation that most contemporary philosophers would be happy to give. It would be to say that our victims' retaliation against these villains is morally okay because it is just retribution for the wrongs they are about to endure. This would explain why we think it wrong to retaliate against innocent threats but not villainous ones: retribution is punishment and only wrongdoers deserve punishment.

Perhaps then our new right is a new argument for an old idea: the idea of Retributive Justice.

Retributive Justice— Lex Talonis, an eye for an eye, a tooth for a tooth,  and all that— has an ancient history  and many intimidating  advocates including Hammurabi,  Jehovah and Immanuel Kant.  But it fell deeply out of fashion in the 19th century.  Critics thought it sounded too much like the expression of a primitive desire for revenge.   

For a long while, Utilitarian justifications of punishment became the accepted wisdom: to be justifiable, punishment must make everyone better off by deterring future wrongdoing and/or by improving the general happiness in some other way.

It took a surprisingly long time for philosophers to notice that Utilitarian accounts of punishment could not explain why we think guilt and innocence matter; that is they couldn't explain why punishment should be just. If, say, hanging an innocent man might prevent an imminent riot, why not string him up? If what makes punishments okay are future consequences, what difference does it make what anyone did in the past?

Utilitarianism's inability to account for justice led some philosophers to try to revive the idea of retribution. Old fashioned Retributionists from Jehovah to Kant had tended to speak as if retribution was justified by some hidden dimension of metaphysical, karmic machinery : there were scales to be balanced, debts to be paid, stains to be washed away, Yins to be Yanged. Contemporary Retributionists have been anxious to avoid the mumbo jumbo of "desert " and "balance" and they have been at pains to stress that retribution is very different from revenge.

Nozick said there were five differences between revenge and retribution: In the first place, while someone might take revenge for, say, an imagined slight, you can extract retribution only for genuine wrongdoing. In the second place, retribution properly so called must be proportional to the harm done, whereas revenge might be wholly disproportional. In the third place, revenge must be taken by an injured party whereas, Nozick says, "the agent of retribution need have no special or personal tie to the victim." In the fourth place, "Revenge involves a particular emotional tone, pleasure in the suffering of another, while retribution either need involve no emotional tone, or involves another one, namely, pleasure at justice being done." In the fifth place, retribution must be done on general principles. Whether a victim wants revenge or in what measure will depend upon how they feel. "Whereas the imposer of retribution… is committed to (the existence of some) general principles… mandating like punishments against like wrongs".

Nozick disapproved of revenge of course, but he thought the idea of retribution was defensible.  His  argument for it was pedagogical:  When we punish people we are trying to teach them that what they have done is wrong; not to keep them or anyone else from doing it again (though that might be a nice by-product) but because it is true that what they did was wrong and it is always a good thing to teach people what is true. The pain and suffering that goes along with punishment is, well, just a way of getting the students' full attention. And Nozick didn't think it mattered if the punished actually learned their lesson or mended their ways. Teacher may do a good job and everyone should be grateful to teacher, even if the students learn nothing at all. It is a distinctly professorial theory of punishment.

Another contemporary  school takes a similar line but plays to a bigger stage.   This theory of "punishment-as-comunication"  holds that by punishing we are sending a message not just to the punished but to society as a whole.  We are signaling to one and all that that we think certain behavior is wrong. Punishment is a kind of performance art with the  sufferings of the punished serving as the medium of the message.

In contrast to these communicative theories, other accounts argue that retribution is justified by the moral demands of social equality and/or economic efficiency:   we punish the wrong doer to remove from him any advantages he might gain by his wrong doing thus leveling the social playing field and preventing monopoly.  In this view, punishment is a kind of progressive taxation. 

To be fair, these theories are all attempts to justify large scale social institutions. They are concerned with punishments under the law, administered by the courts, and were not designed to deal with the kinds of up-close, first person retaliation we have been considering. As we noted before, the Problem of Retaliation has mostly escaped philosophical notice. And that may be a pity. Because if we think of what Sam and Sally are doing as punishing their attackers, these neo-Retributionist theories will not seem very plausible. Must we really think that Sally is justified in fighting back only if she intends to educate her attacker? Must she be concerned with sending a message to him or anyone else to justify her actions? At that moment should her actions really be governed by considerations of social equity?

Of course you can reject these philosophical theories of retribution and still believe in retribution itself. You may, if you like, just insist that the villains in these stories have given up their rights not to be harmed and (damn it!) deserve what's coming to them. But saying that is just to stamp the foot and beg the question. To say they deserve whatever punishment Sam or Sally can administer is just to say that it is morally okay for Sam and Sally to retaliate. To say that the villains, by acting badly, have "given up their rights" not to be harmed is just another way of saying that it is okay to harm them. The question remains: why is it okay?

So maybe it was a mistake to try to justify retaliation as any kind of punishment. The whole idea of retribution has a kind of icky Old Testament feel to it anyway. But, if we can't justify Sam and Sally's retaliation as retribution, how can we uphold their right to fight back?

As you might have guessed, I have another account up my sleeve, though I can't promise that you will like it much better.

Retaliation as Compensation

My proposal is simply that we should regard retaliation in cases like Sam and Sally's as a form of compensation for the victims. The right to Retaliate is just an instance of the right to compensation.

I assume we all agree that if Sam and Sally were to somehow survive the attacks on them they would be entitled to compensation from their attackers. Even after the criminal courts had dealt with the villains , we would expect the civil courts to award their victims large sums.

Compensation, unlike Retribution, is not controversial. It is commonly complained against the idea of retributive justice that once you get beyond "an eye for an eye, a tooth for a tooth" (which, literally construed, few believe anyway) it gives us no non-arbitrary way to calculate precisely how much suffering the punisher is entitled to inflict upon the guilty. Many take this to show that the whole idea of retribution is nonsense. Some argue that this shows all punishment is immoral.

Maybe so, but no one ever makes this argument against the idea of compensation. Everyone— or at least all grown-ups — know that it is false that "You can't put a value on human life." Judges, juries and actuaries do it all the time for lives, eyes, teeth, emotional trauma, alienation of affection and every other ill that flesh is heir to. Of course, the values set are sometimes arbitrary and controlled by non-moral factors, but no one takes this as proving that compensation is an incoherent idea or that requiring compensation—sometimes forcibly-- is an immoral practice.

Alas, the question of how much monetary compensation Sam or Sally should receive is moot. They will soon be dead. But suppose that in these last dark moments of their lives Sam or Sally gain some small satisfaction in the thought that their killers will not walk away unscathed. Suppose they just want to harm their attackers for the small solace of hurting someone who is going to hurt them? Why would it be wrong for them to allow themselves that small gratification in the moments left to them? Aren't they owed that by their attacker?

Be careful to note that I am not arguing that by harming their attackers our victims will be compensating themselves for their impending deaths. You cannot compensate someone for being dead. Indeed it is a notorious philosophical puzzle to explain in what sense, if any, a killed person has actually suffered a harm. After all, it is not as if the dead are worse off than they otherwise would have been. They aren't worse off; they aren't any way at all: they're dead.

In contrast, the grief and Sam and Sally presently endure is not problematic: each suffers here and now as they contemplate their untimely ends. It is for that real live occurrent suffering that compensation is owed. If that suffering can be alleviated, now -- and it is now or never-- by the knowledge the bad guy will suffer too then, I say, the victim may make it so. We count the attacker's pain as compensation they owe their living victims.

Of course, we do not normally encourage people to take cheer in contemplating the suffering of others. Schadenfreude is normally deplored on the grounds that it is psychologically unhealthy and liable to lead to bad behavior. But Sam's and Sally's circumstances are not normal and we have already agreed, you and I, that in their circumstances retaliation would not be wrong.

The appeal to compensation explains why guilt and innocence matter. You are only entitled to compensation from someone who has wronged you—that is, from someone who has harmed you by acting wrongly. If Sam had survived THE INNOCENT FALLING man he would not be entitled to compensation if the falling man were truly innocent of malice and negligence. Likewise it would be wrong for Sam to preemptively retaliate against the INNOCENT FALLING man. Sam will still suffer anguished moments, but no compensation is due because the anguish is not the attacker's fault.

Observe that what I am arguing for here is not retribution by the philosophical standard. Retribution, properly so-called, is supposed to be impersonal, un-emotional, disinterested and guided by universal rules. In contrast, retaliation can be compensation only if retaliating actually makes the victim feel better and whether that is so will depend upon facts quite specific to the victim and, to some extent, under the victim's, and only the victim's, control. If Sam or Sally were so psychologically constructed that they took no comfort in afflicting their afflicters-- if they chose instead to spend their last moments asking the Lord to forgive their trespassers and endeavoring to love their enemy-- they would not be making a moral mistake. And to take the extreme case: if Sam or Sally were suicidal masochists-- so they welcomed their killers actions-- then they would not be entitled to any compensation from their killers, since they will not be harmed by them. In that case, according to this theory, it would be morally wrong for them to harm their attackers.

Retaliation-as-compensation is not impersonal, unemotional, disinterested or universal. It is entirely personal, emotional, interested and dependent on what particular victims believe and want.  It operates only if victims can take active pleasure, or at least solace, in contemplating the sufferings of their attackers.

This is not retribution I am advocating. This is revenge.

Well, I warned you, you might not like where this was going but let me remind you, you got here on your own. If you don't like saying that sometimes people have a right -- a moral right— to revenge, then you are welcome to fall back to the idea of retribution or to come up with your own solution to The Problem of Retaliation.

Or perhaps, things having taken this ugly turn, you now want to deny that retaliation is ever morally permissible. In that case you should walk yourself back through our cases and try to figure out where you took a wrong step. Be sure, though, to stop along the way to explain to Sally why it would be wrong for her to fight back.

Or just maybe, having coming this far, you are prepared to agree that, at least in extreme cases like these, some people (victims) are morally entitled to harm other people (villainous attackers) for no other reason than the satisfaction (or hope of it) of causing them harm.  Why not say that in these very limited circumstances, it is not wrong to take revenge.

But now we face another problem: just how limited is the right to retaliation?

Revenge  Insurance 

Even though Sam and Sally have only a few moments to act it doesn't seem that their retaliation must be limited to that interval. The VILLAINOUS FALLING MAN may only feel Sam's shot after he lands; and so, after Sam is dead. But that possibility doesn't seem to argue against Sam's shooting while he can. Or again, suppose that Sam has a hand grenade not a gun. He can be sure that if he pulls the pin it will injure his attacker when it goes off, but knows it won't go off till after he, Sam, is dead. How could it be okay for Sam to pull the trigger but not to pull the pin? The Retributionist would say it doesn't matter because the bad guy deserves what he gets whenever he gets it. I say it doesn't matter because Sam may take comfort (and hence compensation) now from the knowledge of his attacker's future suffering. In any case it is difficult to see, other things being held constant, how the exact time at which retaliation kicks in can be morally decisive.

On the other temporal side:  It is clear that Sam and Sally may act only when they are certain of the harm their attacker means to do them.  But, given that we agree that retaliation is permissible in some circumstances,  it seems that it must be permissible for Sam or Sally to prepare ahead of time to retaliate should those circumstances arise. If we believe that people have a right to self-defense then we will believe that people have a right to arm themselves ahead of time in case they need to defend themselves. Given that we agree that people sometimes have a right to retaliate it seems we should also agree that it would not be wrong for Sam or Sally to arm themselves ahead of time—to buy a gun or grenade—with rightful retaliation in mind.

Of course, there is the worry about how Sam or Sally can really be certain about what is about to happen. And, in Sam's case, how could he be sure the falling man is villainous? This doesn't argue against retaliation in principle, but it recommends caution in retaliating and, perhaps, delay. The ideal retaliatory weapon would be one which the victim could rely on to injure the attacker always, but only if and when, the attacker had already inflicted harm and was a villain. Perhaps a hand grenade controlled by some particularly sagacious iPhone app?

"Now, things are getting farfetched again!" Very well, time for another thought experiment.

REVENGE INSURANCE
You are travelling to a lawless third world country to do good works. You make preparation for your journey: You get the appropriate shots. You increase your health insurance in case the shots don't work. To protect the family you are leaving behind, you increase your life insurance and add a double indemnity clause.

Friends advise you to arm yourself, but you are not comfortable with guns. Instead, you visit the office of a private security agency ( "The Agency")to investigate the possibility of hiring bodyguards. The Agency's sales rep explains to you that because of the prevalence of violence and the total absence of law in this country the demand for private security there is high and so the service is very expensive. Looking at their rate sheet you realize it is far more costly than you can afford. As you rise to leave, the sympathetic rep offers you a brochure for one of The Agency's other services. They call it "Revenge Insurance".

The brochure explains that Revenge Insurance does not provide any protection to its policy holders.  However, in the event that a subscriber is the victim of wrongful injury while in-country, the agency will undertake to use its considerable resources to track down the wrongdoer. When they find him, The Agency's operatives will not try to have the wrongdoer pay the policy holder compensation or recover stolen goods. That is a separate service and, given the general poverty in the country, rarely worth the cost.  But, if you have Revenge Insurance, what the agency will do to the bad guy who injured you is hurt him .

How much they will hurt him is a matter of negotiation. There are limits: The agency will not conduct extended tortures because its operatives find them distasteful and unprofessional. For the same reason, they will not apply penalties that its agents feel wildly disproportionate. They will not, for example, cut off the hand of the child who steals your fake Rolex (though if the watch is real, well…) But within these weak constraints the agency offers a wide spectrum of options ranging from the brutal (but popular) "eye-for-an-eye" policy to gentler schedules that will, for example, only force your murderer to write a letter of apology to your mom and attend a couple of anger management classes. If you don't like any of the offered off-the-shelf plans, you can negotiate your own custom roster of harms-for- injuries constrained only by your imagination, your budget and The Agency's sense of propriety. The only proviso is that your choices cannot be changed after the time of purchase. Victims of violence too often demand additional penalties agents find disproportionate. 

The Agency has many references to show that it can be trusted to fulfill its contracts. Indeed The Agency is so scrupulous that it generally insists on making good on its commitments even on those rare occasions when victims change their minds after the fact. The Agency worries that too much clemency will undermine its reputation for ruthlessness so it charges a stiff penalty to any subscriber who wants to "forgive and forget".

Question: Assuming that it works exactly as advertised, would it be morally permissible for you to buy Revenge Insurance?

Given everything we have agreed to so far, you and I, it seems that we must answer "Yes". Buying a policy is just putting in place a mechanism that will reliably retaliate against people who wrong you and we have agreed that that is permissible. True, the retaliation won't occur till after you have suffered the wrong--perhaps after you are dead-- but we have already agreed that that does not make a moral difference.

Is it significant that The Agency isn't just a mechanism? That it works through agents-- people-- who, at your bidding, may end up hurting other people? Should you worry that by taking out your policy you will be inducing the agents to do something wrong? It doesn't seem so. If you think you have a moral right to retaliation in some measure, it is hard to see how you can think it wrong for someone else to help you achieve it in just that measure. If you had hired the Agency to provide you with bodyguards, you would have been contracting them to hurt other people in certain circumstances. But in those circumstances their actions would not be wrong since they would be enforcing your right to self defense. Why should it be different when they are enforcing your right to retaliation.

And notice that it doesn't make a difference on this point whether you regard retaliation as retribution or compensation: "Revenge Insurance" is just Retaliation Assurance, and both theories treat retaliation as morally okay. The theories only give divergent answers when we turn from the question of whether you may buy revenge insurance to the question of whether you should.

For a Retributionist like Kant the answer would be straightforward: Kant would have said you should buy a policy because you ought to buy one. You are, Kant thought, morally obliged to make sure that wrong doers get punished. They deserve it! You are shirking your moral duty unless you do everything you can to make sure that bad guys get what they deserve. And this is so, Kant says, whatever the cost or consequences. Which would seem to entail that even poor Sally is morally required to fight back, despite the fact that doing so is guaranteed to increase her suffering.

In contrast, if we think that retaliation is justified only as compensation, we will think it nonsense to suppose that you are ever obliged to retaliate. You do nothing wrong if you refuse compensation. Forgiveness may not be morally required, but neither is it prohibited.

On the compensation view, whether you should buy Revenge Insurance will be a calculation of cost and benefit. It will depend on how you feel. It will depend, to use an old fashioned word, on your sentiments.

You bought that life insurance policy, at least in part, because it makes you feel better, now, to know that your loved ones will be well cared for if you die. Given that you face a good chance of being murdered, would it make you feel better, now, to know that anyone who murders you will themselves suffer ? If it would, how much is that feeling worth to you? If it wouldn't-- if you find the idea of other people being hurt abhorrent, whatever wrong they may have done you-- then put away your credit card: Revenge Insurance is not for you. You may think that forgiveness to your credit in some larger sense but if someone else--- some Sally or Sam-- feels differently, we have not found moral grounds to deny them their right to retaliation.

Of course, the REVENGE INSURANCE story is a bit far fetched in ways that are morally relevant. How could one know that The Agency will always get things right? If they get the wrong guy, or if the guy had a good excuse, or if he wasn't really responsible for his actions, then hurting him --to whatever extent you contracted for-- will be wrong and it will be your fault.

Then too even if the guy isn't innocent there is the worry the Agency will misapply your chosen menu of retaliations to administer more harm than you think retaliation morally permits.

And then there are larger issues of social justice: If we think Revenge Insurance a benefit, then shouldn't we worry that it is a benefit enjoyed only by well off tourists at the cost of the indigent natives?

These are sensible concerns. Luckily we can go a long way to answering them by a wave of the philosopher's magic wand.

Let us give this country a government! Let it be as benign and democratic a government as you can imagine. And let us give this government all the foreign aid it might require to improve the lot of its citizens.

Let us build hospitals and provide them free of charge to its citizens under a system of national health insurance!

Let us provide for the disabled and the widowed and the orphaned by providing state sponsored life insurance for every citizen!

Let us abolish private protection agencies and create a police force to defend all its citizens against the violence of their fellows!

And, because no police force can prevent all violence, let it us give a final crowning comfort to the citizenry by nationalizing The Agency, and providing Revenge Insurance for one and all!  

We will convene the people's representatives to draw up a menu of appropriate retaliations-for-harms that every citizen can agree to. We will recruit impartial juries of citizens to judge the facts of each case. We will replace the Agency's mercenaries with Wise and Learned Men who are well schooled in the detailed application of whatever revenge policy the polity selects.   We could even have them wear wigs!

Justice as Retaliation

And so after all this magic, we are in familiar country. We have talked ourselves into recognizing the moral legitimacy of a system of criminal law and judicial punishment. Remarkably, we got here without assuming any of the traditional apparatus of Retributive Theories of justice or punishment. We began only by recognizing the right to retaliation. It turns out to be all we needed to make moral sense of the large scale social practice.

This is evidence, I submit, that the idea of retaliation is more morally basic than the idea of retribution; that retribution, if it makes sense at all, must be understood in terms of retaliation, not vice versa.

Neither have our arguments for justice as retaliation turned on any appeal to utilitarian consequence. We did not argue that advertising your Revenge Insurance might deter people from attacking you, though it obviously might. Neither did we have to suppose that a system of universal Revenge Insurance-- that is, a system of Criminal Justice -- will reduce the amount of wrongful violence in society, though it obviously does.

Our justification for punishing the wrong doer is not that we are enacting God-like retribution. Neither do we have to argue that inflicting the punishment will make any person, living or dead, happier or better off.  We punish to keep a promise to the victims:  a promise made before they were victims, a promise they were entitled to ask for; that we were entitled to give and that we are now obliged to honor.  It was the giving of the promise to retaliate, way back then, that comforted the victim-to-be way back then, not the present fulfillment of that promise.  

The criminal justice system promises all of us here and now that it will punish those who trespass against us. There are good reasons to want public institutions to keep their promises, whether to protect us, or care for us, or retaliate on our behalf.  Those reasons of course include considerations of general utility.  But those considerations count only if what was promised was already morally permissible and what makes punishments permissible is that they are retaliations against wrong doers. 

The police enforce the citizens' right to self defense;  the civil courts enforce their ongoing rights to compensation;  the criminal courts, their right to retaliation.

Justice as Revenge

Nothing in this new theory of Justice entails any particular schedule of punishments for wrongs. We saw that deciding what sort of revenge insurance to buy for yourself  would be a highly subjective calculation of cost and benefit.  If we are to provide retaliation assurance as a public good, the calculation becomes complicated and political.  Retaliation is more important to some of us than others and we will disagree about proportionality. But if it is to be guaranteed us by a public institution and if we expect others to carry out retaliation on our behalf, then we will need to compromise with one another and balance retaliation's value with other public benefits and costs. 

On this view, deciding what punishments are just would be a complicated business-- far more complicated that counting missing eyes and teeth.  And so it is.

And because, in the end, the value of retaliation to any of us will depend upon our sentiments, our theory explains why it is that what is just will vary from culture to culture and may change over time within a single society as sentiment evolves.  

If it is disturbing  to find that justice is founded  in revenge, it should be a comfort to remember that revenge rests on sentiment.  The desire for revenge is deeply rooted in human psychology but so to are impulses to  forgiveness and compassion.  That, in itself,  is an embarrassment for traditional theories of punishment: compassion has no special relevance to the Retributionist's or Utilitarian's unsentimental calculations of utility and desert.  In contrast, the conception of Justice we have arrived at here explains why justice is the sort of thing that can be tempered with mercy.

Still, we must ask ourselves:  Suppose that in her final moments Sally had 
somehow reached out to us and asked us to promise to avenge her rape and murder.  Would we have given her the consolation of that promise?  And, if we  did, would we now be prepared to keep our promise, keeping in mind that any of us might someday ask the others for a similar promise? 

If your answer is "yes", well ... here we are.

 

---

Thanks to Kadri Vihvelin, Bill Barthelemy and David Gordon for thier help.

 

Comments

[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

[Timothy Griffy]

You lost me at Villainous Falling Man II. I totally agreed with you on the first three scenarios without hesitation, but this is where I hesitated, precisely because it struck me as more about revenge than anything else. I then agreed with you about the Rapist scenario, but not for the reasons you gave. And yet I found myself agreeing that Sam could pull the pin on the grenade even though I thought pulling the trigger couldn't be justified.

As weird as those different responses may seem, I think it can be explained through a combination of retribution and prudence. In the shooting alternative, you specified that shooting the VFM may or may not kill him. All Sam gets here is the slight satisfaction he will get in the miliseconds remaining of his life that VFM won't walk away unscathed. That doesn't seem to be that much of a gain to me. Furthermore, shooting VFM without any assurance of actually killing him would also be imprudent, since if VFM does walk away, he can claim he fell because you shot him. So whatever chance there may have been that VFM will be brought to justice has been completely eliminated.

In contrast, pulling the pin makes sense. Realisticly speaking, if you are at the bottom of a well and a grenade explodes underneath you, you are almost certainly going to die. That's good old-fashioned retribution. Since the odds VFM would face justice were already low, Sam seems justified in pulling the pin.

Contra your explanation, in the case of the Rapist, it would still be prudent for Sally to resist, even if there is no realistic hope of stopping the rapist. Not resisting might be prudent, but not because it would give her a higher chance of survival; the story as you stipulated it the only thing Sally would realistically gain is to not die as cruelly as she would otherwise. The surviving victim's story does not give Sally any reassurance that being passive would help her survive. As you presented the story, the surviving victim believes she survived because she was passive. But we are straight out told she barely survived. This means the rapist did his solid best to kill her, and the best explanation for her survival is mere luck. This means that, if Sally wants to survive, her most prudent course is to resist, even against any real hope. However extremely unlikely the odds, in this case they are not zero.