Friday, November 18, 2011

Punishing what harms no one else

The following is a plausible Liberal principle:

  1. It is only appropriate punish that which harms someone or something else, or is intended or sufficiently likely to do so.
(If one thinks that exposing someone to a sufficient probability of harm is itself a harm, one can simplify this. Note also that what counts as sufficiently likely is relative to the degree of punishment and degree of harm. Doing something that has a one in a million chance of causing me a hangnail is probably not deserving of punishment, except maybe of the most trivial sort, but doing something that has a one in a million chance of blowing up New York may well deserve serious punishment—cf. Parfit on small chances.)

I shall argue against this principle. Recall Mill's very plausible insistence that:

  1. Being subject to social opprobrium is a kind of punishment.
(And one often would rather pay a hefty fine than be subject to social opprobrium, so it can be a heavy punishment.) Now observe:
  1. Some irrational beliefs are appropriately subject to social opprobrium even though they harm no one else, are not intended to harm anyone else and are not sufficiently likely to do so.
For instance, consider someone's really crazy conspiracy theoretic beliefs which were formed irrationally, out of a desire to be different, rather than out of an honest investigation of the truth, and suppose that this is someone whom no one is likely to believe, and hence someone harmless in these beliefs. Or consider the racist beliefs of someone who is too prudent to ever act on them because she does not wish to risk social disapproval.


  1. It can be appropriate to punish something that harms no one else, and is neither intended nor sufficiently likely to do so.

Now, one can get out of this consequence if one makes some sort of a communitarian assumption that no man is an island, that one person's irrationality is a constitutive part of the community's being thus far irrational, and is eo ipso harmful to other members of the community even if they do not themselves follow this irrationality, since now they are made to be participants in a community that exhibits this irrationality. But if one allows such "extended harms", then the principle (1) becomes uninteresting. Likewise, if one brings in "extended harms" to God, where God is said to be harmed in an extended sense provided that one acts against his will.

Could one turn this around and make it an argument for tolerance of irrationality? This would involve insisting on (1) and concluding that harmless irrationality should not be the subject of opprobrium. Yet such opprobrium seems to be an important part of what keeps us rational, and it seems obviously appropriate, especially when the irrationality is a result of the agent's moral failings.


Matthew said...

I wonder if it is relevant that principle (2) is stated in terms of the patient, whereas (1) and (4) are stated in terms of the agent.

When I identify an object of disgrace, I try to condemn the act rather than the person who committed the act. Of course, I know that this condemnation will almost always be received by the other person as a condemnation of his person. But this is only a secondary and unavoidable consequence of my condemning the act.

When, on the other hand, the state actively punishes an individual, retribution is not directed against the act (because it is simply nonsense to speak of getting retribution against, say, murder itself). Retribution is always primarily directed against persons.

This is why I think it is necessary to condemn certain irrational beliefs but also forbidden to fine or imprison a person simply for holding that belief.

Heath White said...

Clifford, in "The Ethics of Belief," at least has an answer to this along the communitarian lines. He says in effect that indulgence in wishful thinking is corrosive to the practice of good careful judgment, and that if continued, society will "sink back into savagery." This has always struck me as somewhat overblown but not totally crazy. (However I don't think religious beliefs generally are instances of wishful thinking.)

However it also strikes me that we do not apply very much social opprobrium to beliefs which are not expressed, and I don't think this is merely an epistemological difficulty. Rather there is an idea that, if you keep it to yourself, you can think what you want. It's when you become vocal that the effects of your craziness or racism become harder to predict. So that is a form of tolerance for irrationality.

Alexander R Pruss said...


A murderer may be entirely repentant by the time she's convicted in court. In such a case, the court could be seen not as condemning her, but her act.

Note that it is not the belief as such that is condemned, but the way in which the person reached it.


In some cases this is plausible, but in others it's less so, especially if the mode of belief formation is morally corrupt.

radp said...

"1. It is only appropriate punish that which harms someone or something else, or is intended or sufficiently likely to do so."

I think this principle conflicts with the duty to rescue which is enforced by law in many countries and with which many liberals presumably agree.

Alexander R Pruss said...

I would count refraining from helping, especially when one can reasonably do so, as a form of harm. In a similar way, non-payment of taxes harms the community and can be punished.

radp said...

"I would count refraining from helping, especially when one can reasonably do so, as a form of harm. "

Hm, ok. Here is another problem then: violating the speed limit without risk of harming anybody, or the violation of any law which causes no harm if violated by a few only, but causes great harm if violated by many. If a single person violates such a law, he is not punishable by (1), but then many people will soon violate it, if there is some incentive to it, and soon there will be chaos. Therefore if society is to work, (1) has to go.

Alexander R Pruss said...

Well, actually, a single violation of an anti-speeding law can be more dangerous than if everybody violated it, since what is particularly dangerous is not speed, but differences in velocity.

I also think that in a lot of such cases, there is at least a non-zero danger of harm, and that danger may be sufficient to justify the law.

That said, your discussion makes me see that there is a whole class of potential counterexamples to (1) provided by the fact that law is a blunt instrument. Thus while a particular instance of some activity may be utterly harmless, it is an instance of a type many other members of which are harmful. For instance, various licensing laws are like that: it is dangerous if people without a license engage in activity A, but there are particular unlicensed individuals whose engagement in A carries no sufficient risk of harm.

This means that the harms need to be evaluated not in respect of the token activity in question, but the type of activity. And that does serious damage to the argument in the post. For while there are harmless instances of irrational belief, the type irrational belief is in general quite harmful.

Still, I think it may be possible to rescue the argument. While we accept laws that are blunt instruments, we still think they should be as sharp as is practicable. But in the case of social opprobrium, we can be as sharp as we wish--it is up to us whether to heap opprobrium on this particular individual or not, there not being any law that requires us to heap opprobrium on the individual be she harmful or not. So I think social opprobrium for harmless irrational beliefs is still unjustified under the modified type-version of (1).

But I agree that the argument as I originally gave it is flawed, because (1) was an unacceptable principle, whether for Liberals or not.

radp said...

Oh, I did not mean to imply that your argument is flawed. I just thought out loud how (1) might fail in other ways. Maybe this principle is implicitly unacceptable for Liberals, but many espouce it (or something very similar to it) nevertheless. Probably, because they do not clearly see the consequences of it.