If you break the law there are supposed to
be consequences. Prison, community
service, a fine - whatever. But punishing someone is deliberately inflicting suffering on them, and normally
we say that inflicting suffering on people is bad, so how is legal punishment justified? How do we take breaking the law and translate that into punishment?
There are two major types of theories that
philosophers of law use to answer this question.
The first is consequentialism. Punishing you aims at achieving some
good consequence. That might be deterrence, deterring other people from committing crimes; it might
be reform, stopping you from doing it again, or it might be something else. But the idea is that the punishment
is justified because it achieves some good end.
The second theory is retributivism. When you
break the law, you morally deserve to be punished.
It might also bring about some good consequence but it's not really important whether or not that happens; what matters is that you
deserve to suffer.
One of the advantages of consequentialism
is that it's easy to measure and test. So if
the goal of our punishment system is reform we can test the number
of criminals that become repeat offenders
and say, "OK, this type of punishment isn't
working; let's try something else." Or we can say, "Oh look, this country has experimented with this
kind of punishment and their crime rate has gone
down, so let's try something similar here." And we can
also build a scale for punishing people. So for instance if
we know that 20 years in prison doesn't reform
shoplifters any more than 2 years in prison, well we know
there's no point imprisoning shoplifters
for more than 2 years. We can figure out which
punishment will be the best value and the most effective.
Retributivism can't do that so easily. It
says that you should get what you deserve,
which prompts the question, "What do you deserve?" We don't want to punish you
too harshly or too leniently. So how do we figure out your just deserts?
Let's have a look at some different ways
of finding out what criminals deserve. First
up, "an eye for an eye." This is one of
the oldest retributivist ideas, in fact it's
over three and a half thousand years old,
dating back at least to the Ancient Babylonian
Code of Hammurabi. You can find it in the Torah, the Qur'an, and the Bible, and in fact some
countries still use it today. The technical
term for it is lex talionis, the law of retaliation,
and the idea is that the punishment is justified if it takes the same form as the crime. So if
you kill someone you will be killed, if you
blind someone you will be blinded, and so on.
But the problem with lex talionis is that
sometimes it's impossible to inflict on
the criminal what they did to the victim.
Some legal crimes are technically victimless, like dangerous
driving that doesn't actually hit anybody.
How do you recreate that?
Or tax fraud? Or illegally downloading
music?
Also, it might seem a little hypocritical if the crime is actually morally wrong. Like if beating somebody to death is an evil thing to
do, why is suddenly Ok to do it just because the person did it
to someone else first? At the very least you need to come up with some kind of explanation for that.
We could try modifying lex talionis to say
that the punishment is justified if it causes
an equal amount of suffering as the crime. So if you blind somebody
we're not literally gonna take your eyes but we will do something to you that will cause an equal
amount of nastiness.
Trouble is though, suffering isn't easy
to measure. It doesn't come in kilograms
or inches. And if you're a particularly tough person you might be more easily able to bear
suffering than somebody else. So still this doesn't really help us practically decide what punishments we need to inflict on people.
The next step after lex talionis is usually
Proportionality. That's when we say that
a punishment is justified if it's proportional to the crime. A worse crime deserves a
harsher punishment. The trouble with that though is that we are gonna need some justified punishment to act as our measuring stick. Otherwise it's difficult to
know what we should inflict in people. So for instance, if murder gets you ten years in prison and shoplifting gets
you one year in prison, why isn't it murder gets you
ten minutes in prison and shoplifting gets you one minute, because that's still in proportion?
There are other ways to try and figure out how much criminals deserve to suffer, but they
all have their disadvantages. So Russ Shafer-Landau takes a different approach. He says there isn't actually an answer to this question.
There are no facts of the matter about how much a criminal deserves to suffer, any more than
there could be facts about what colour the number nine is. This position is called Moral-Desert Nihilism.
And this leaves Shafer-Landau with the apparently
bizarre conclusion that criminals do not deserve
to suffer. And once you take hold of it that can seem like a very weird idea. Murderers
don't deserve to suffer? Thieves don't
deserve to suffer? If Stalin or Hitler were on
trial, they really wouldn't deserve to suffer?
This can seem a very weird idea, that punishment
is not actually morally justifiable.
And you might say, "Well then why not just let them all out? Why not let all the criminals go
because none of their punishments can be justified? Or alterantively, why not put people to death just for littering? If there are
no facts of the matter about how much a criminal deserves to suffer then no punishment could
be too lenient or too harsh!
But those responses all assume that there is
some morally justified level of punishment, which is exactly what the moral desert nihilist
is denying. So although they seem very intuitive and obvious they actually beg the question.
The challenge for the moral desert nihilist
is to show that punishments can be too harsh
or too lenient or take the wrong form because of something about them that is nothing to do with moral desert,
i.e. to become some form of consequentialist.
Legal punishments might still end up causing
suffering, and it might be the case that that
suffering is an inevitable result of the good
consequence of the punishment, which outweighs it whilst still not being morally deserved.
Interestingly, there is actually a third theory, which is neither fully consequentialist nor
fully retributivist, called communicative
punishment. And we'll have to go into that one another time.
In this video we've looked at two different ways of trying to justify legal punishment, retributivism
and consequentialism. Patreon.com/PhilosophyTube
is where you can chuck me a couple of bucks if you wanna help me give away
more free philosophy education on YouTube. Leave me a comment telling me which theory you prefer or maybe you can come up with a different one, and as always please don't forget to subscribe.
