Punishment by loss of reputation

John Stuart Mill famously wrote:

We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow-creatures; if not by opinion, by the reproaches of his own conscience.

I have two concerns about the middle item, punishment “by the opinion of his fellow-creatures”: (1) standing and (2) due process.

1. Standing

Punishment requires the right kind of standing on the part of the punisher. Unless in some way you are under my authority or perhaps I am an aggrieved party, I do not have the standing to punish you. There are two ways of taking this worry.

First, one might take it that without standing it is literally impossible for me to punish you. It is certainly possible for me to treat you harshly, and my harshness can be a reaction to your wrongdoing, but perhaps it won’t be a punishment.

I am not completely sure about this, though. For suppose you have done something wrong and a vigilante without standing has imposed harsh treatment on you in reaction to this, a harsh treatment that would have counted as maxing out retribution if the vigilante had standing, and then you fall into the hands of an authority with the standing to punish. A case can be made that at that point it is inappropriate for the authority to impose further harsh treatment, and that the best explanation is that the vigilante has already punished you. But perhaps this case isn’t right. Our law does not, I think, work this way. A judge might take into account what you suffered at the hands of the vigilante and reduce your sentence, but it does not seem that the judge would be unjust in still giving you the full sentence that the law calls for (and the vigilante then being punished if caught, too). Moreover, the intuition that “you’ve suffered enough already” may apply even in cases where you something bad happens to you as a non-punitive consequence of a crime, say if you’re a drunk driver and you crash into a wall causing yourself to be paralyzed from the neck down. So on the whole, I am dubious that it is possible to punish without standing.

The second worry about standing is that without standing, I have no right to impose the harsh treatment on you (barring special circumstances, such as your giving me permission). This is clear if in fact the previous worry about standing applies and the harsh treatment would not count as punishment—for in that case, the harsh treatment is unjustly applied, since the one relevant justification for it would be that it is a punishment, and it’s not. But even if the harsh treatment were to count as punishment, without standing an injustice has happened.

But perhaps third-parties do in fact have standing to punish. I can see two stories being told to defend this standing.

First, no man is an island, so if you wrong one person, perhaps you wrong all of society, and so third-parties have standing as aggrieved parties. I am doubtful, however, whether aggrieved parties as such do have standing to punish. My children do not have the right to punish each other for misdeeds committed against each other. Moreover, it seems implausible that there be a disjunctive story about the standing to punish, so that both authorities and aggrieved parties have standing. One might try to say that only aggrieved parties have standing to punish, and then say that authorities punish as representatives of the aggrieved community, but that seems mistaken. For authorities can also legitimately punish wrongs done against those that are not members of the aggrieved community. Parents can legitimately punish children for things that the children did against members of other families. (It is tempting to say that this is a punishment for the violation of family rules, which damages the peace of the family, but that approach does not seem pedagogically right.)

Moreover, in a Christian context, it is very dubious whether aggrieved parties have any right to punish on account of their grievance: to impose punishment on account of one’s own grievance seems to be the kind of behavior that the duty of forgiveness rules out and that is also ruled out by Romans 12:19. So a justification of punishment in terms of a standing that derives from being aggrieved is not available to Christians.

Second, perhaps random third-parties count as deputed by society to impose punishment by adverse opinion, even though they are not deputed to impose punishment by violent means. If so, then they have standing to punish on the grounds of deputed authority rather than ont he grounds of being aggrieved. This fits much better with the anti-vengeance motif of the New Testament. Perhaps some evidence of such a deputation is that truth is a defense in defamation lawsuits.

I think an implicit deputation model is the best story about punishment by adverse third-party opinion. But I am still sceptical. One reason is this. Punishment by third-party opinion can be at least as harsh on the wrongdoer as a fine or even a moderate term of imprisonment. Yet we do not think courts have a duty to routinely significantly reduce punishments for significant crimes on the grounds that the person has already been punished by public opinion, or to increase punishments on the grounds that public opinion has been silent. Thus, adverse opinion does not seem to be a properly deputed part of the punishment.

2. Due process

Punishment requires procedural justice. But public opinion rarely follows best practices there. Even though punishments through adverse opinion can be as harsh on the accused as criminal penalties, the thorough examination of evidence, with a presentation of both sides by able legal representation and a factual examination by independent peers following a “beyond reasonable doubt” standard is rarely present in the case of punishment by public opinion. And even if there are no reasonable grounds for doubt about the wrongs committed, rarely is there a serious examination of evidence about mens rea or sanity.

About the only time that public opinion is able to follow our best practices is if the public opinion comes after a proper criminal trial and is entirely conditioned on its outcome. But that is rare, and anyway isn’t the case that Mill is thinking about.

Final remarks

The above does not mean, however, that public opinion needs to be silent on wrongs done. For there are other reasons to criticize someone’s conduct besides punishment, such as:

• protecting vulnerable others

• leading the perpetrator to change of behavior and/or heart

• inspiring others to resist injustice.

But if I am right, it is crucial for the sake of justice that the adverse public opinion be motivated by such goods as these rather than by retribution. And there is always the danger of self-deceit and the need for prudent choice of means (public denunciation seems less likely to lead to positive change than private admonition).