I want to argue for this thesis:
- For a punishment P for a
fault F to be right, P must stand in a causal-like
relation to P.
What is a causal-like relation? Well, causation is a causal-like
relation. But there is probably one other causal-like relation, namely
when because of the occurrence of a contingent event E, God knows that E occurred, and this knowledge in
turn explains why God did something. This is not exactly causation,
because God is not causally affected by anything, but it is very much
like causation. If you don’t agree, then just remove the ``like’’ from
(1).
Thesis (1) helps explain what is wrong with punishing people on
purely statistical grounds, such as sending a traffic ticket to Smith on
the grounds that Smith has driven 30,000 miles in the last five years
and anyone who drove that amount must have committed a traffic
offense.
Are there other arguments against (1)? I think so. Consider
forward-looking punishment where by knowing someone’s present character
you know that they will commit some crime in ten days, so you punish
them now (I assume that they will commit the crime even if you do not
punish them). Or, even more oddly, consider circular forward-looking
punishment. Suppose Alice has such a character that it is known that if
we jail her, she will escape from jail. But assume that our in society
an escape from jail is itself a crime punishable by jail, and that Alice
is not currently guilty of anything. We then jail her, on the grounds
that she will escape from jail, for which the punishment is us
now jailing her.
One may try to rule out the forward-looking cases on the grounds that
instead of (1) we should hold:
- For a punishment P for a
fault F to be right, P must come after F.
But that’s not right. Simultaneous causation seems possible, and it
does not seem unjust to set up a system where a shoplifter feels
punitive pain at the very moment of the shoplifting, as long as the pain
is caused by the shoplifting.
Or consider this kind of a case. You know that Bob will commit a
crime in ten days, so you set up an automated system that will punish
him at a preset future date. It does not seem to be of much significance
whether the system is set to go off in nine or eleven days.
Or consider cases where Special Relativity is involved, and the
punishment occurs at a location distant from the criminal. For instance,
Carl, born on Earth, could be sentenced to public infamy on earth for a
crime he commits around Alpha Centauri. Supposing that we have prior
knowledge that he will commit the crime on such and such a date. If (2)
is the right principle, when should we make him infamous on earth?
Presumably after the crime. But in what reference frame? That
seems a silly question. It is silly, because (2) isn’t the right
principle—(1) is better.
Objection: One cannot predict what someone will
freely do.
Response: One perhaps cannot predict with 100%
certainty what someone will freely do, but punishment does not require
100% certainty.