Punishment, causation and time

I want to argue for this thesis:

1. 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:

2. 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.

Punishment, reward and theistic natural law

I’ve always found punishment and (to a lesser extent) reward puzzling. Why is it that when someone does something wrong is there moral reason to impose a harsh treatment on them, and why is it that when someone does something right—and especially supererogatory—is there moral reason to do something nice for them?

Of course, it’s easy to explain why it’s good for our species that there be a practice of reward and punishment: such a practice in obvious ways helps to maintain a cooperative society. But what makes it morally appropriate to impose a sacrifice on the individual for the good of the species in this way, whether the good of the person receiving the punishment or the good of the person giving the reward when the reward has a cost?

Punishment and reward thus fit into a schema where we would like to be able to make use of this argument form:

1. It would be good (respectively, bad) for humans if moral fact F did (did not) obtain.

2. Thus, probably, moral fact F does obtain.

(The argument form is better on the parenthetical negative version.) It would be bad for humans if we did not have distinctive moral reasons to reward and punish, since our cooperative society would be more liable to fall apart due to cheating, freeriding and neglect of others. So we have such moral reasons.

As I have said on a number of occasions, we want a metaethics on which this is a good argument. Rule-utilitarianism is such a metaethics. So is Adams’ divine command theory with a loving God. And so is theistic natural law, where God chooses which natures to exemplify because of the good features in these natures. I want to say something about this last option in our case, and why it is superior to the others.

Human nature encodes what is right and wrong for. Thus, it can encode that it is right for us to punish and reward. An answer as to why it’s right for us to reward and punish, then, is that God wanted to make cooperative creatures, and chose a nature of cooperative creatures that have moral reasons to punish and reward, since that improves the cooperation.

But there is a way that the theistic natural law solution stands out from the others: it can incorporate Boethius’ insight that it is intrinsically bad for one to get away unpunished with wrongdoing. For our nature not only encodes what is right and wrong for us to do, but also what is good or bad for us. And so it can encode that it is bad for us to get away unpunished. It is good for us that it be bad for us to get away unpunished, since its being bad for us to get away unpunished means that we have additional reason to avoid wrongdoing—if we do wrong, we either get punished or we get away unpunished, and both options are bad for us.

The rule-utilitarian and divine-command options only explain what is right and wrong, not what is good and bad, and so they don’t give us Boethius’ insight.

Infinite evil

Alice and Bob are both bad people, and both believe in magic. Bob believes that he lives in an infinite universe, with infinitely many sentient beings. Alice thinks all the life there is is life on earth. They each perform a spell intended to cause severe pain to all sentient beings other than themselves.

There is a sense in which Bob does something infinitely worse than Alice: he tries to cause severe pain to infinitely many beings, while Alice is only trying to harm finitely many beings.

It is hard to judge Bob as an infinitely worse person than Alice, because we presume that if Alice thought that there were infinitely many sentient beings, she would have done as Bob did.

But even if we do not judge Bob as an infinitely worse person, shouldn’t we judge his action as infinitely worse? Yet even that doesn’t seem right. And neither seems to deserve that much more punishment than a sadistic dictator who tries to infect “mere millions” with a painful disease.

Could it be that punishment maxes out at some point?

On a generalization of Double Effect

Traditional formulations of the Principle of Double Effect deal with things that are said to have absolute prohibitions against them, like killing the innocent: such things must never be intended, but sometimes may be produced as a side-effect.

Partly to generalize the traditional formulation, and partly to move beyond strict deontology, contemporary thinkers sometimes modify Double Effect to be some principle like:

1. It is worse, or harder to justify, to intentionally cause harm than to do so merely foreseeably.

While (1) sounds plausible, there is a family of cases where intentionally causing harm is permitted but doing so unintentionally is not. To punish someone, you need to intend a harm (but maybe not an all-things-considered harm) to them. But there are cases where a harsh treatment is only permissible as a punishment. In some cases where someone has committed a serious crime and deserves to be imprisoned, and yet the imprisonment is not necessary to protect society (e.g., because the criminal has for other reasons—say, a physical injury—become incapable of repeating the crimes), then the imprisonment can be justified as punishment, but not otherwise. In those cases, the harm is permitted only if it is intended.

It still seems that it tends to be the case that intentional harm is harder to justify than merely foreseen harm.

From the normative burden of wrongdoing to the existence of God

In recent posts I’ve been exploring the idea that wrongdoing imposes on us a debt of a normative burden.

This yields this argument:

1. Whenever one does wrong, one comes to have a debt of a normative burden to one who has been wronged.

2. A debt can only be owed to a person.

3. One cannot owe a debt to oneself.

4. Therefore, every wrongdoing includes a wrong to a person.

This has some interesting consequences.

First, it is possible to do wrong to future generations, but one cannot owe anything to the nonexistent. So either eternalism is true, and future generations exist simpliciter, or God exists and we owe a normative burden to God when wrong future generations, or both. So we get the disjunction of eternalism and God’s existence.

Second, we simply get the existence of God. For it is wrong to engage in cruelty to animals even if no human is wronged, other than perhaps oneself. But one cannot be in debt to a non-person or to oneself (debts are the sort of thing one can be released from by the one to whom one owes them; this makes no sense if the creditor is oneself, and impossible if the creditor is a non-person). So the only explanation of whom one can owe the normative burden to is that it’s God, who creates and loves the animals.

If one thinks that it is possible to owe a debt to animals, or one is unconvinced that cruelty to animals is wrong, there is yet another argument for the existence of God. Suppose Alice is the only finite conscious thing in the universe. However, Alice comes across misleading evidence that there are many other finite persons, and that there is a button that, when pressed, will result in excruciating pain to these persons. She then maliciously presses the button. Alice has done wrong, but the only finite conscious thing she can be counted as wronging is herself. She doesn’t owe a normative debt to herself. So she must owe it to something other than a finite conscious being. One cannot owe a debt to anything but a conscious being. So there must be an infinite conscious being, i.e., God.

Forgiveness

If I have done you a serious wrong, I bear a burden. I can be relieved of that burder by forgiveness. What is the burden and what is the relief?

The burden need not consist of anything emotional or dispositional on your side, such as your harboring resentment or being disposed not to interact with me in as amicable a way as before or pursuing my punishment. For, first, if I secretly betrayed you in such a way that you never found out you were wronged, my burden is still there. And, second, if you die without forgiving me, then the burden feels intact—unless perhaps I believe in life after death or divine forgiveness.

The burden need not consist of something emotional or dispositional on my side, either. For if it had to, I could be relieved of it by therapy. But therapy might make it easier to bear the burden, or (if badly done) may make me think the burden is gone, but the burden will still be there.

People often talk about forgiveness as healing a damaged relationship. But that’s not quite right, either. Suppose I have done many grave wrongs to you over the years that have completely ruptured the relationship. You have finally, generously, brought yourself to forgive me some but not all of them. (A perhaps psychologically odd story: you are working backwards through your life, forgiving all who have wronged you, year by year. So far you’ve forgivenes the wrongs in the last three years of your life. But my earlier wrongs remain.) The remaining ones may be sufficient to make our relationship remain completely ruptured.

The burden is fundamentally a normative feature of reality, as is hinted at by the use of “debt” language in the Lord’s Prayer (“Forgive us our debts as we forgive those indebted to us”). By wronging someone, we make a move in normative space: we burden ourself with an objective, and not merely emotional, guilt. In forgiveness, the burden is removed, but the feeling of burden can remain—one can still feel guilty, just as one’s back can continue hurt when a load is removed from one’s back.

Insofar as there is a healing of a relationship, it is primarily a normative healing. There need not be any great psychological change, as can be seen from the case where you have forgiven me some but not all wrongs. Moreover, psychological change can be slow: forgiveness can be fast, but healing the effects of the wrongdoing can take long.

So far we have identified the type of thing that forgiveness is: it is a move in normative space that relieves something that the wrongdoer owes to a victim. But we are still not clear on what it is that the wrongdoer owes to the victim. And I don’t really know the answer here.

One possibility it is that it has something to do with punishment: I owe it to you to be punished. If so, then there are two ways for the burden to be cleared: one is by being punished and the other is by being forgiven. I can think of one objection to the punishment account: even after being adequately punished, you still can choose whether to forgive me. But if punishment clears the burden, what does your forgiveness do? Maybe it is at this point that the psychological components of forgiveness can enter: it’s up to you whether you stop resenting, whether you accept the clearing of the burden? Plus, in practice, it may be that the punishment is not actually sufficient to clear the burden—a lifetime in jail is not enough for some crimes.

Another possibility is that there is something normative and emotional. I owe it to you to feel guilty, and you can clear that debt and make it no longer obligatory for me to feel that way. That, too, doesn’t seem quite right. One problem is circularity: objective guilt consists in me owing you a feeling of guilt, but a feeling of guilt is a feeling that I am objectively guilty. Maybe the owed feeling has some other description? I don’t know!

But whatever the answer is, I am convinced now that the crucial move in forgiveness is normative.

Promising punishment

I have long found promises to punish puzzling. The problem with such promises is that normally a promisee can release the promisor from a promise. But what’s the point of me promising you a punishment should you do something if you can just release me from the promise when the time for the promise comes?

Scanlon’s account of promising also faces another problem with promises to punish: Scanlon requires that the promisee wants to be assured of the promised action. But of course in many cases of promising a punishment, the promisee does not want any such assurance! (There are some cases when they do, say when they recognize the benefit of being held to account for something.)

Additionally, it seems that breaking a promise is wrong because of the harm to the promisee. But it is commonly thought that escaping punishment is not a harm. Here I am inclined to follow Boethius, however, who insisted that a just punishment is intrinsically good for one. But suppose we follow common sense rather than Boethius, or perhaps we are dealing with a case where the norm whose violation gains a punishment is not a moral norm.

Then there is still something interesting we can say. Let’s say that I promise you a punishment for some action, and you perform that action, but I omit the punishment. Even if the omission of the punishment is not a harm, you might feel a resentment that in your choice of activity you had to take my prospective punishment into account but I wasn’t going to follow-through on the punishment. There is something unfair about this. Perhaps the point is clearest in a case like this: I promise you a punishment each time you do something. Several times you hold yourself back due to fear of punishment, and then finally you do it, and out of laziness I don’t to punish. You then feel: “Why did I even bother to keep to the rule earlier?”

But note that even in a case like this, it seems better to locate the harm in my making of the promise if I wasn’t going to keep it than in the non-keeping of it. So, let’s suppose that the Boethius line of thought doesn’t apply, and suppose that I am now deciding whether to perform the onerous task of punishing you as per promise. What moral reason do I have to punish you now in light of the promise? Well, there are considerations having to do with future cases: if I don’t do it now, you won’t trust me in the future, etc. But we can suppose all such future considerations are irrelevant—maybe this is the last hour of my life. So why is it that I should punish you?

I think there are two mutually-compatible stories one can tell. One story is an Aristotelian one: it’s simply bad for my will that I not keep my promise. The other story is a trust-based one: I solicited your trust, and even if you want me to break trust with you, I have no right to betray your trust. Having one’s trust betrayed is in itself a harm, regardless of whether one is trusting someone to do something that is otherwise good or bad for one.

Corruptionism and justice

Corruptionists hold that our souls survive death, but we are not our souls, and we do not survive death. All the corruptionists I know are Christians, and hold that eventually there comes a resurrection of the body, and then the soul regains its body, and our existence resumes.

A standard argument against Christian corruptionism is that on the view, it is our soul after death that suffers punishment or enjoys reward, while it is unjust that something that isn’t oneself should suffer punishment for one’s deeds.

A corruptionist response that I don’t ever remember seeing is this: only persons can be subject to injustice, and the soul is not a person, so no injustice happens to the disembodied soul.

While this does solve the problem of the injustice of the punishment, it does so at a cost. For if injustice cannot happen to a non-person, then by the same token, justice cannot be done to a non-person. Now it is only appropriate to punish x if the punishment is an instance of justice. If justice cannot be done to a non-person, then punishment cannot be appropriately imposed on a non-person.

This lead to a direct new version of the argument against Christian corruptionism: only persons can be appropriately punished, disembodied souls are not persons, and hence it is not appropriate to punish a disembodied soul. This version of the argument has an advantage over the standard argument, namely that it is irrelevant whether one’s sins belong to one’s soul or not.

How plausible this dialectics is depends on how plausible is the thesis that only persons can have justice or injustice done to them. I find the thesis plausible.

Remark 1: Of course, we talk of punishing and rewarding dogs and other non-human animals. But I think that is an analogical sense of the words "punish" and "reward."

Remark 2: Although noting that the soul is not a person solves the problem of injustice, it doesn't by itself resolve the problem of the imposition of suffering. Even though it is not unjust to kick one's dog when the dog did nothing wrong, it is wicked to do so.

Double punishment

Suppose Alice deserves a punishment of degree d, and Bob and Carl each impose on her a different punishment of degree d. Who unjustly punished Alice?

If one punishment came before the other, we can say that the second punishment was unjust, since it was the punishment of a person who no longer deserved punishment. But what if the two punishments are simultaneous?

Maybe we can say that each of Bob and Carl contributed to an unjust punishment. But what each contributed was just! Still, I think the contribution story seems best to me.

Mill on injustice

Mill thinks that:

1. An action is unjust if society has a utility-based reason to punish that actions of that type.

2. An action is wrong if there is utility-based reason not to peform that action.

Mill writes as if the unjust were a subset of the wrong. But it need not be. Suppose that powerful aliens have a weird religious view on which dyeing one’s hair green ought to be punished with a week in jail, and they announce that any country that refuses to enforce such a punishment as part of the criminal code will be completely annihilated. In that case, according to (1), dyeing one’s hair green is unjust. But it is not guaranteed to be wrong according to (2). The pleasure of having green hair could be greater than the unpleasantness of a week in jail, depending on details about the prison system and one’s aesthetic preferences.

The problem with (1), I think, is that utility-based reasons to punish actions of some type need have little to do with moral reasons, utilitarian or not, against actions of that type.

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:

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

5. 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.

Learning of secret wickedness

When people learn that some apparently really decent person was a hypocrite who secretly practiced execrable vices, that tends to shake people’s faith in God. We can explain this by noting that the case provides one with a vivid case of moral evil, which provides evidence against the existence of God.

But we already knew that there was a lot of moral evil out there. So the effect on belief in God should not be very significant. And it is worth noting that learning of cases like the above can actually help with the problem of evil. In our time, we are very hesitant to use the punishment theodicy for evils that happen to people. But learning that there are more people with terrible hidden vices than we thought increases the probability that any particular evil befalling an apparently decent adult might actually be a well-deserved punishment.

Of course, a punishment theodicy will only go so far. It doesn’t apply to animals or small children. And the Book of Job teaches that it doesn’t apply to all cases of adults either. But realizing the dark truth that people who appear to be exemplars of virtue can be quite wicked should open us to the possibility that the punishment theodicy applies to a lot more cases than we thought.

Of course, the more cases we have to which the punishment theodicy applies, the more moral evils we have that need a theodicy as well. But free will considerations can help a lot with moral evils.

So it may well be that learning of someone’s secret evils is a wash in terms of the evidential import of the evil for God’s existence.

Unforgivable offenses that aren't all that terrible

When we talk of something as an unforgivable offense, we usually mean it is really a terrible thing. But if God doesn’t exist, then some very minor things are unforgivable and some very major things are forgivable.

Suppose that I read on the Internet about a person in Ruritania who has done something I politically disapprove of. I investigate to find out their address, and mail them a package of chocolates laced with a mild laxative. The package comes back to me from the post office, because my prospective victim was fictional and there is no such country as Ruritania.

If God doesn’t exist, I have done something unforgivable and beyond punishment. For there is no one with the standing to either forgive or punish me (I assume that the country I live in has a doctrine of impossible attempts on which attempts to harm non-existent persons are not legally punishable). Yet much worse things than this have been forgiven by the mercy of victims.

I ought to feel guilty for my attempt to make the life of my Ruritanian nemesis miserable. And if there is no God, there is no way out of guilt open to me: I cannot be forgiven nor can the offense be expiated by punishment.

The intuition that at least for relatively minor offenses there is an appropriate way to escape from guilt, thus, implies the existence of God—a being such that all offenses are ultimately against him.

Punishment, criticism and authority

It is always unjust to punish without the right kind of authority over those that one punishes.

Sometimes that authority may be given to us by them (as in the case of a University’s authority over adult students, or maybe even in the case of mutual authority in friendship) and sometimes it may come from some other relationship (as in the case of the state’s authority over us). But in any case, such authority is sparse. The number of entities and persons that have this sort of authority over us is several orders of magnitude smaller than the number of people in society.

This means that typically when we learn that someone is behaving badly, we do not have the authority to punish them. I wonder what this does or does not entail.

Clearly, it does not mean that we are not permitted to criticize them. Criticism as such is not punishment, but the offering of evaluative information. We do not need any authority to state a truth to a random person (though there may be constraints of manners, confidentiality, etc.), including an evaluative truth. But what if that truth is foreseen to hurt? If it is merely foreseen but not intended to hurt, this is still not punishment (it’s more like a Double Effect case). But what if it is also intended to hurt?

Well, not every imposition of pain is a punishment. Nor does every imposition of pain require authority. Suppose I see that you are asleep a hundred meters from me, and I see a deadly snake, for whose bite there is no cure, approaching you. I pull out an air rifle and shoot you in the leg, intending to cause you pain that wakes you up and allows you to escape the snake. Likewise, it could be permissible to offer intentionally hurtful criticism in order to change someone’s behavior without any need for authority (though it may not be often advisable).

But there is a difference between imposing a hurt and doing so punitively. In the air rifle case, the imposition of pain is not punitive. But in the case of criticism, it is psychologically very easy to veer from imposing the criticism for the sake of reformation to a retributive intention. And to impose pain retributively—even in part, and even by truthful words—without proper authority is a violation of justice.

There are two interesting corollaries of the above considerations.

First, we get an apparently new argument against purely reformatory views of punishment. For it seems that the imposition of pain through accurate criticism in order to reform someone’s behavior would count as punishment on a purely reformatory view, and hence would have to require proper authority (unless we deny the thesis I started with, that punishment without authority is unjust).

Second, we get an interesting asymmetry between punishment and reward that I never noticed before. There is nothing unjust about rewarding someone whom we have no authority over when they have done a good thing (though in particular cases it could violate manners, be paternalistic, etc.) In particular, there need be nothing wrong with what one might call retributive praise even in the absence of authority: praise intended to give a pleasure to the person praised as a reward for their good deeds. But for punishment, things are different. This is no surprise, because in general harsh treatment is harder to justify than pleasant treatment.

When bad things happen to bad people

Sometimes when bad things happen to bad people, we feel like they deserve them. Suppose Alice has broken into Bob’s house to poison his beloved dog, and on her way out she trips and breaks her leg. It sure seems that she got what she deserved.

But the bad that a bad person deserves is punishment: an intentional harsh treatment by a punisher. Our feeling that Alice got what she deserved can only be right if there is some supernatural judge—for clearly no natural judge is behind this—who as a punishment has either caused her to break her leg or at least intentionally failed to prevent the leg-breaking.

I think this provides us with a little bit of evidence that God exists. For a feeling that p is some evidence that p. So, the feeling that Alice got what she deserved is some evidence that she got what she deserved.

Separation from God

The worst part of being in hell is separation from God. But Jesus did not become separated from God. So how could his suffering atone in place of our deserved punishment of eternity in hell?

Some theologians, perhaps of a kenotic sort, may hold that Jesus did become separated from God. But this is heterodox.

Here is perhaps a solution: separation from God in hell is the worst part of being in hell, but it’s not a punishment.

As it stands, this would contradict the Catechism of the Catholic Church which states: “The chief punishment of hell is eternal separation from God” (1035).

But perhaps we can distinguish two senses of punishment: retributive and non-retributive. Suppose that I am vain, and vanity leads to a fall, namely that I become a plagiarist. My plagiarism, then, is a kind of punishment for my pride. It is fitting. It is just. But it is not a retribution for my vanity. Here is one feature of this kind of non-retributive punishment: its lack is not an injustice. Suppose I am vain and instead of this leading to further vice, people notice my ridiculous vanity and start laughing at me, which hurts my feelings badly. In this case, I am much better off than in the case where my vanity led me to plagiarism, since I did not become more vicious. But notice that even though becoming more vicious would have been quite fair, my not becoming more vicious isn’t itself unjust. For it is the omission of due retributive punishment that is unjust.

This distinction in hand, we might say that separation from God in hell is non-retributive punishment. Many authors in the 20th century have argued that hell is a kind of choice one makes rather than a retribution. But with the distinction, we can say that this is true of the separation from God: that is what the wicked have chosen, and it is just that they get it, but it is not retributive punishment. There is, however, retributive punishment in hell, the chief part of which is the pain of separation from God. This pain, however, Christ could be said to suffer, for while not himself actually separated from God, he could take on himself the pain of separation on behalf of others, through perfect empathy.

Punishment is not a strict requirement of justice

There is no strict duty to reward a person who has done a supererogatory thing. Otherwise, engaging in generosity would be a way of imposing a duty on others.

But punishment is the flip side of reward. Hence, there is no strict duty to punish a person who has done a wrong.

Of course, supererogatory action makes a reward fitting, and likewise wrong action makes a punishment fitting. But in neither case is the retributive response strictly required by justice.

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).

Van Inwagen on evil

Peter van Inwagen argues that because a little less evil would always serve God’s ends just as well, there is no minimum to the amount of evil needed to achieve God’s ends, and hence the arguer from evil cannot complain that God could have achieved his ends with less evil. Van Inwagen gives a nice analogy of a 10-year prison sentence: clearly, he thinks, a 10-year sentence can be just even if 10 years less a day would achieve all the purposes of the punishment just as well.

I am not convinced about either the punishment or the evil case. Perhaps the judge really shouldn’t choose a punishment where a day less would serve the purposes just as well. I imagine that if we graph the satisfaction of the purposes of punishment against the amount of punishment, we initially get an increase, then a level area, and then eventually a drop-off. Van Inwagen is thinking that the judge is choosing a punishment in the level area. But maybe instead the judge should choose a punishment in the increase area, since only then will it be the case that a lower punishment would serve the purposes of the punishment less well. The down-side of choosing the punishment in that area is that a higher punishment would serve the purposes of the punishment better. But perhaps there is a moral imperative to sacrifice the purposes of punishment to some degree, in the name of not punishing more than is necessary. Mercy is more important than retribution, etc.

Similarly, perhaps, God should choose to permit an amount of evil that sacrifices some of his ends (ends other than the minimization of evil), in order to ensure that the amount of evil that he permits is such that any decrease in the evil would result in a decrease in the satisfaction of God’s other ends. If van Inwagen is right about there not being sharp cut-offs, then this may require God to choose to permit an amount of evil such that more evil would have served God’s other ends better.

The above fits with a picture on which decrease of evil takes a certain priority over the increase of good.

Reincarnation and theodicy

As I was teaching on the problem of evil today, I was struck by how nicely reincarnation could provide theodicies for recalcitrant cases. “Why is the fawn dying in the forest fire? Well, for all we know, it’s a reincarnation of someone who committed genocide and is undergoing the just punishment for this, a punishment whose restorative effect will only be seen in the next life.” “Why is Sam suffering with no improvement to his soul? Well, maybe the improvement will only manifest in the next life.”

Of course, I don’t believe in reincarnation. But if the problem of evil is aimed at theism in general, then it seems fair to say that for all that theism in general says, reincarnation could be true.

Here is a particular dialectical context where bringing in reincarnation could be helpful. The theist presses the fine-tuning argument. The atheist instead of embracing a multiverse (as is usual) responds with the argument from evil. The theist now says: While reincarnation may seem unlikely, it surely has at least a one in a million probability conditionally on theism; on the other hand, fine-tuning has a much, much smaller probability than one in a million conditionally on single-universe atheism. So theism wins.