The longing for justice without punishment

The main theories of punishment in philosophy can be given as:

Instrumentalism, negative retributivism, positive retributivism.

Glossing over many subtleties, the gist of each is:

1. Instrumentalism holds that punishment is justified if it makes things better overall.

2. Negative retributivism holds that punishment is justified if it makes things better overall, and the wrongdoer has actually done something that makes the punishment appropriate.

3. Positive retributivism holds that punishment, rightly merited, is good in itself. Thus, it is at least sometimes appropriate, even if it doesn’t improve the state of things overall apart from the punishment in itself, because certain deeds require correction through punishment.

I think that positive retributivism is wrong, but it is attractive because it aims to capture, in a mangled way, a longing that the other approaches have no answer to. Retributive approaches are attractive because they acknowledge the past. We are beings with a history- we have a deep need to intergrate our past, and to help others to do so, sometimes even posthumously.

I also think that, in an odd way restorative approaches to criminal punishment- which generally aren’t seen as an alternative to retributivism or instrumentalism in the philosophy of punishment- are the “ethically right” solution to the core longings pointed to in the debate between retributivism versus instrumentalism, however such a solution, understood in its fullest terms, is infeasible. We long for something we cannot have, and that longing forces us into this debate- ignore the past, or conduct punishment, crafting a crude fetish to an impossible reconciliation.

When people wrong us, we want a resolution of the situation, not just forward-looking solutions. However, punishment is a poor imitation of the resolution we want- and hence we tend to reject it when we are at our moral best. At our best, we want a sequence of actions and outcomes in response to wrongdoing which we could call the repair sequence. That sequence includes:

1. To be restored to our former position or better (this is sometimes possible and sometimes impossible), or at the very least be restored to a position which is in some sense “adequate” (exactly what people demand here will vary).

2. For society to recognise that we have been wronged and decisively conclude on our side in the affair (this is generally possible, although there are some subtleties that have to be addressed in the case in which there is not enough evidence to prove the case,

3. For society to take steps to prevent this from happening again (generally possible, though the efficacy of these steps will vary)

4. For the wrongdoers to recognise that they have wronged us, understand that they have wronged and sincerely resolve not to do so again (it is impossible to achieve this reliably, and just as impossible to reliably verify that it has happened.

In my experience, virtious people do not long for retribution if all of 1-4 can be fufilled. On the other hand, if retribution is achieved but 1-4 are not achieved, people still have a sense of emptiness, longing, and of something not truly corrected.

Nevertheless, retribution does sort of look like it fills the psychological gap, if you don’t think about it too hard. The positive retributivist intuition exists because, at present, there is no way to reliably and verifiably achieve the whole package, especially (1) and (4), but in many cases, any of them. The victim faces a trilemma:

1. Demand the likely impossible- restoration.

2. Give up on legitimate claims for justice.

3. Demand punishment as a substitute.

The popularity of retributivism arises from the substitution of punishment for restoration- the ever popular approach of: well, we’ve got to do something. We cannot raise the dead, we cannot heal physical and psychological wounds at will, and we cannot make someone see that what they did was wrong, but at least the urge to punish recognises our need to repair or correct in a way that the other approaches don’t.

Note that the most sophisticated versions of positive retributivism sometimes move in a restorationist direction. Duff’s claim that punishment is communication to the wrongdoer of their wrongdoing is attractive because communication- as a first step to understanding is part of what we want from a theory of ethical correction. We want repair, and Duff’s story tries to tell us that, maybe if you squint at it, inflicting suffering is a first step to putting us back in ethical communion.

Much of my life I have been absorbed by the dialectic between justice and mercy. Both are generally considered virtues, but are often seen as opposed- justice, giving what is deserved, especially, in this context, the ‘correction’ of wrongdoers and wrongdoing. Mercy- extending grace and softness even to wrongdoers.

But from the perspective of a perfect justice- beyond what we can achieve with our limitations- justice and mercy merge. It’s only for an imperfect actor- imperfectly strong or imperfectly good- that the demands of justice and mercy split. A perfect actor corrects wrongs while making things better for everyone, even for the wrongdoer. Only rarely outside small and trivial cases are we so fortunate as to be able to do both at once. For us, our attempts to approximate justice usually consists in making things worse for the wrongdoer, often even morally coarsening them.

Any hope of making restoration really possible would require far fetched technologies- creating a world in which restoration is possible, or can be much more closely approximated than it is now. A world in which punishment is unnecessary because people can’t harm each other in punishment-worthy ways. A world in which if, somehow, major harms did still occur, they could be fully corrected- including making the wrongdoer grasp that what they did was wrong.

Some people have suggested to me that it would be wrong to use technology to, for example, make someone to see that what they did was wrong. It seems to me that if it is permissible to make someone suffer in the hope that they will see what they did was wrong, then this is permissible- indeed, if we have the choice of the two, it is the more permissible of the pair. “We’re not actually going to alter your cognition (we’re just going to make you suffer so much you do it to yourself)” does not seem more ethical. You’d certainly best be damn sure that what they did is actually morally wrong- but this awful task falls us on us with punishment too, and we have become far too lax about it. The horror and caution people feel about rewiring a mind to recognise its wrongdoing are feelings they should have about punishment generally.

Thinking that it is wrong to give someone awareness of what they did wrong technological intervention, but not by sending them to prison, seems to me rather like approving of brain surgery, but only if performed with an icepick and not a scalpel.. Especially when we consider what prisons are like now, and how little protest is raised about this, such worries seem like the falsest of false piety.

I’ve argued in the past, a technological solution to the problem of restoration- the capacity to change someone’s mind and make it known their mind has changed- has the potential of fully reincorporating the offender into society in a way that no current social, therapeutic, or technical mechanism does.

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