Tuesday, August 13, 2013

The value of punishment

Boethius gives a striking thesis:

The wicked are happier in undergoing punishment than if no penalty of justice chasten them. And I am not now meaning what might occur to anyone—that bad character is amended by retribution, and is brought into the right path by the terror of punishment, or that it serves as an example to warn others to avoid transgression [...] .
Surely, then, the wicked, when they are punished, have a good thing added to them, the punishment which by the law of justice is good [...]. (Consolation, IV)

The brief argument seems to be:

  1. What justice calls for is good.
  2. Justice calls for punishment.
  3. So, punishment is good.
Unfortunately, the conclusion that we want is not (3) but:
  1. Punishment is good for the person undergoing it.
Can we fill in some plausible steps between (3) and (4)?

Perhaps Boethius takes it as clear that justice does not call for punishment simply because "bad character is amended by retribution ... or as an example to warn others" or in any other easy reductive account that "might occur to anyone" (e.g., Nietzsche's "account" on which punishment gives compensatory pleasure to the victims, or accounts on which criminals are simply taken out of circulation by being jailed, for the protection of society). Such benefits are there, but they aren't the benefit that justice is primarily aimed at.

Plausibly, the benefits of justice are to persons. Well, the relevant persons seem to be:

  • the criminal
  • the victims
  • other members of society
  • the punisher
  • God.
Which of these are such that justice's primary aim is at a benefit for them?

Let's start by ruling out options from the bottom of the list. Everyone benefits, in an extrinsic but important way, when those they love benefit. God loves all. So any benefit to anyone is an extrinsic benefit to God. God is love and is immutable and simple. It plausibly follows that all contingent benefits to God are such extrinsic benefits. Thus, a contingent benefit to God will require a benefit to someone else. So choosing the option of God doesn't get us out of the puzzle. Moreover, when we aim at a benefit for God in this way, we should also be aiming non-instrumentally at a benefit for the creature.

While the punisher may receive some pleasure or the good of excellence in a job well done, surely that's not what justice aims for. It seems clear that just punishment does not require other members of society. Imagine someone has killed every other member of her society. She deserves punishment—say, from another society, or from a self-imposed life of penance.

The victims? There is an intuition that punishment is a way of honoring victims, perhaps posthumously. One problem with this is that criminal punishment appears just even when the criminal was forgiven by the victims. But when the criminal was forgiven by the victims, the criminal should not be punished for the sake of the victims, since by forgiveness the victims relinquish claims to punishment on their behalf. But I worry that this argument is not sufficient. After all, it could be that all of society counts as a victim in the case of a crime, since society's laws have been unjustly violated, so forgiveness by the more particular victims is not yet forgiveness by all of society. (This also shows how "victimless" crimes aren't victimless.)

Here is perhaps a more telling counterexample to the victim theory. Suppose Patricia notices a planet with rudimentary unicellural life but where she has very good reason to think intelligent life will evolve. She leaves behind a device which will kill off the intelligent life on the planet as soon as there are a million intelligent beings. A week later, Darth Vader tests the Death Star on the planet. Patricia has committed attempted murder, but there are no victims: there never was and never will be any intelligent life on this planet. Yet Patricia is clearly deserving of punishment as having committed a species of attempted genocide. Moreover, even if she broke no society's law, there is some sense in which justice calls for her punishment—this is the sort of thing that there ought to be a law against, and this "ought" is an "ought" of justice.

Another worry about locating the benefit in the victims is that may seem problematic to impose such great intrinsic burdens on the living for the sake of what appear to be merely extrinsic benefits to the dead (apart from somewhat dubious theories of the afterlife on which the dead rejoice in seeing their malefactors punished).

That leaves the criminal as the recipient of the benefits of punishment.

I think the most serious challenge to the argument is one on which justice leads to goods that are not the goods to any persons. Maybe justice benefits "the moral order of the universe". I am sceptical, though, of goods that are not derivative from goods to fundamental entities, and on my ontology the universe and its moral order are not fundamental entities.

10 comments:

Dagmara Lizlovs said...

This is what Purgatory is all about. I have been doing more in-depth reading about Purgatory, and the revelations of Purgatory to the Saints, particularly Saint Catherine of Genoa. Plus I've been deepening my Catholic spirituality by praying Novenas for the Holy Souls in Purgatory. And I've got news for your Protestant colleagues who don't believe in Purgatory, while they may be saved, most of them will spend time languishing in Purgatory because their co-religionists don't believe in Purgatory and don't believe in praying for the Holy Souls, and wrongly believe that their saved loved ones are now all blissfully in Heaven. By the way, I do pray for Protestants who are languishing in Purgatory.

Ben Koons said...
This comment has been removed by the author.
Ben Koons said...

Professor Pruss, I wonder if the criminal might not benefit from the punishment for a couple reasons. First, it is better to be free of one's debts by repaying them than to be indebted, and so by being punished the criminal benefits since he no longer has a debt of punishment. Second, punishment of criminals is a common good since it restores the balance of justice in a community, and as a member of this community the criminal himself benefits (but no more so than the other citizens except perhaps since he perceives the disorder more acutely).

Alexander R Pruss said...

Ben:

That sounds right, though there are puzzles about what the debt is and how it is incurred and what the balance of justice is.

Dagmara Lizlovs said...

"Boethius gives a striking thesis:The wicked are happier in undergoing punishment than if no penalty of justice chasten them." I have never met anyone who was happy being punished no matter how wicked they are. I think the exception would be people with masochistic tendencies. Just about everyone I know hates being punished and was definitely not happy about it. I think the exception is Purgatory and here is this excerpt from Catherine of Genoa: "I believe no happiness can be found worthy to compared with that of soul in Purgatory except that of the saints in Paradise. . . As for the will, the souls can never say these pains are pains, so contented are they with God's ordaining with which, in pure charity, their will is united."

More from Catherine of Genoa: "Because of the souls in Purgatory are without guilt of sin, there is no hindrance between them and God except their pain. . . Clearly they see the grievousness of every least hindrance in their way. They also see that their instinct is hindered by a necessity of justice. From this understanding is born a raging fire. . ."

Alexander R Pruss said...

Dagmara:

"Happiness" here is Aristotelian eudaimonia. One can be "happy" in this sense even while feeling utterly miserable.

I am guessing that one of the (no doubt many) differences between hell and purgatory is that the souls in purgatory eventually come to appreciate the value of their suffering while those in hell may abstractly believe that they deserve the suffering (it seems important in punishment to ensure such an understanding) but do not appreciate it.

Dagmara Lizlovs said...

Alex:

I have read that at one time what was meant by "happiness" was a blessedness as opposed to feeling good. That within our current time we have moved away from associating happiness with blessedness and have moved it more towards and Epicurian sense of feeling pleasure or feeling good.

"I am guessing that one of the (no doubt many) differences between hell and purgatory is that the souls in purgatory eventually come to appreciate the value of their suffering while those in hell may abstractly believe that they deserve the suffering (it seems important in punishment to ensure such an understanding) but do not appreciate it." Now this is a hard one for me to grasp. When we look at many people who land in prison, how many of them feel they deserve their punishment? How many of them blame their punishment on the "unfairness" of society, and how many of them see themselves as "good people who have been misunderstood"? How many of them believe that someone or something else is responsible for their being in prison rather than themselves and their bad choices.

The first major difference between the good thief on the cross and the bad thief, was that the good thief first admits the justice of his punishment and then asks Jesus to remember him in his kingdom. I do not know if the good thief appreciated his own pain though.

Dagmara Lizlovs said...

While we are discussing Purgatory, has anyone every had Gregorian Masses said for departed friends or family? Gregorian Masses are basically 30 consecutive Masses said for the repose of a soul in Purgatory. Here is more info:

http://en.wikipedia.org/wiki/Gregorian_Masses

Dagmara Lizlovs said...

I think then that in this following passage we can take "happiness" as Aristotelian eudaimonia:

Proverbs 8:32-35:

"So now, O children, listen to me;
instruction and wisdom do not reject!
Happy the man who obeys me,
and happy are those who keep my ways.
Happy the man watching daily at my gates,
waiting at my doorposts;
For he who finds me finds life,
and wins favor from the Lord;
But he who misses me harms himself;
all who hate me love death."

Alexander R Pruss said...

Right. I bet the Hebrew here (I didn't look it up) can also be translated "blessed".

My feeling is that the Hebrew asher and the Greek eudaimOn are more objective than the English "happy" and less religious (at least eventually--"eudaimOn" literally means having a good daimon) than the English "blessed".