Friday, May 6, 2022

Punishment and the law

Here’s a valid argument:

  1. It is only permissible to punish a person for doing what is morally wrong.

  2. It is permissible for the state to punish a person for disobeying law.

  3. Therefore, disobeying law is morally wrong.

This is already an interesting and somewahat controversial conclusion. It pushes us to the view that when the law forbids something that is innately morally permissible—such as driving on the left side of the road—that thing becomes morally impermissible.

We can then continue arguing to another controversial conclusion:

  1. It is not morally wrong to disobey unjust requirements.

  2. Therefore, no unjust requirement is law.

I suppose all this focuses one’s attention on (1). The opposing view would be that it is permissible to punish a person for doing things that are legally wrong even when they are merely legally wrong. But this seems mistaken. A person who fulfills all moral imperatives is perfectly innocent. But it is wrong to punish a perfectly innocent person.

Note that the first argument implies that taking literally the idea of what some Catholic authors called “purely penal laws”, where there is no moral obligation to obey, just an obligation to pay the penalty if one is caught disobeying, is highly problematic. For if it’s penal, it imposes a punishment, and it’s wrong to impose a punishment for what isn’t wrong to do. That said, it may be that the idea of “purely penal laws” is just a misuse of the word “penal”. We can think of them as laws that simply impose a special fee applicable if one is caught disobeying, but that fee is not a punishment. We can imagine, for instance, a setup where there is a set fee for traveling by bus with a ticket and a larger fee for traveling without a ticket which is levied at random, namely when a ticket checker is present. (I remember that once in Poland buses had a sign detailing a with-ticket price and a without-ticket price, the second being an order of magnitude higher.) But it is a difficult question when something is a fee and when it is a punishment. This question famously came up for Obamacare.


Carl said...

Hello, Dr. Pruss.

I hope this comment finds you well.

My question is not related to this post; I was wondering what your current view is with respect to causal finitism. My goal is to purchase your book: Paradox, Causation, Infinite; though I'm wondering if you still accept much of the ideas in the book.

Alexander R Pruss said...

While I see some complications I didn't see at the time, and have one or two additional arguments for causal finitism, basically I don't have any significant shift.

Sam Harper said...

Do you think you'll ever publish a revised version that addresses the complications you came to see later? Or have you written about it elsewhere?

Casper Night said...

Law by definition originates from the consent or customs of people or from a legitimate authority. If there is none, how can we say that the rule is indeed a law and not just an order?

Here are two definitions of law taken from internet sources. Notice the presence of community in both of them. And then what's the definition of a legitimate authority!

law, the discipline and profession concerned with the customs, practices, and rules of conduct of a community that are recognized as binding by the community.

a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.

nick hadsell said...

Tell me what you think of this objection to (1).

Suppose smoking marijuana is morally permissible. The USFG has prohibited it, and it continues to punish those guilty of possessing marijuana. On (1), this is morally impermissible.

But there are other considerations that count against breaking laws that prohibit perfectly moral behavior. For example, regularly breaking this law might disrupt the stability of a society. It might show disrespect to rulers, which is morally impermissible. (In regard to disrespect, a close analogy is a child refusing to obey her parent's command to not play a game even if playing that game is perfectly fine and the parent's command is mistaken.).

I think you raised this objection when I presented my jury nullification paper in colloquium: perhaps we should not nullify in cases of unjust punishment because there may be other considerations that make it all-things-considered wrong to nullify.

What do you think?

(keep posting about stuff like this! I can't keep up with the heady metaphysics and bayesianism!!!)

Alexander R Pruss said...

This is very interesting. On your hypothesis that smoking marijuana is morally permissible, are you assuming that it is still morally permissible after the state has forbidden it? My view would be that smoking marijuana (in moderation, when there is no significant danger of addiction) is intrinsically morally permissible, but becomes morally impermissible once the law is in place. In this regard (and not only!), it differs from worship of God, which is intrinsically morally permissible, and the state cannot make it impermissible.