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:

4. 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.