Laws of utility and laws of morality

VICTOR REPPERT SAID:

“Well, you have two types of offenses in the criminal law. You have offense where the penalty is set and is clearly finite. These range from jaywalking, to which a fine is attached, to serious felonies that require long prison terms.”

That depends on what theory of punishment underwrites penology. For a penologist who subscribes to remedial punishment, a sentence is indefinite rather than definite. The duration of punishment is contingent on the successful rehabilitation of the offender.

“But there is a boundary on how much we think we should punish. When the time is done, the prisoner gets out. We do not inflict a hell-like punishment on such people, there is a proportionality that is observed and imposes an upper limit on the offense.”

i) As a practical matter, we couldn’t inflict a hellish punishment on any offender, no matter how heinous the offense. We lack the resources.

ii) On the other hand, there are science fiction scenarios in which it’s possible to inflict a hellish punishment (however you define infernal punishment) on the offender.

So, for purposes of philosophical analysis, we aren’t limited to real world remedies.

iii) In addition, we don’t normally regard certain infractions like jaywalking as cases of actual wrongdoing. Rather, those are laws of utility.

So you’d have to distinguish between laws of utility and laws of morality. Culpability involves laws of morality, not laws of utility.

“With some other offenses, we either imprison for life or execute the prisoner. In fact, in some cases we choose life in prison over execution, which in one sense limits the penalty. There is something we could take away that we don't take away.”

Once again, we are limited to the forms of punishment available to us.

“From the perspective of the criminal justice system, punishment exculpates in all cases except capital cases.”

i) That’s obviously false. Once again, it depends on what theory of punishment is guiding the penologist. If the ostensible purpose of punishment is to deter prospective criminals, then serving out one’s sentence is not intended to absolve the offender. Likewise, if the ostensible purpose of punishment is to incapacitate the offender (e.g. incarceration, execution), then serving out one’s sentence is not intended to absolve the offender.

Likewise, if the penologist is a utilitarian, then absolution is not the objective.

Likewise, a deontologist will have a different theory of punishment than a utilitarian.

ii) I’d also add that we don’t have to have a uniform theory of punishment for every crime. It depends on the nature of the offense. For example, retributive punishment would correspond to laws of morality, but not to laws of utility.

To break a law of utility may be a crime, but it’s not morally culpable, per se. Therefore, the purpose of the fine is not to exculpate the offender. He’s “guilty” in the legal sense (a legal technicality), but he’s not guilty in the moral sense. In this case, a fine doesn’t represent a just desert. Not all crimes are wrongs (unless you’re a contract theorist and legal positivist).

“But hell is not only for capital criminals. So even if there are some offenses which deserve everlasting punishment from the point of view of the criminal justice system, I have surely done nothing worthy of that kind of punishment. Yet, presumably, I have done something worthy of hell, and so have you. Most people have not committed crimes worthy or unlimited judicial punishment. So your defense of hell is of limited value even if it works.”

i) I don’t think you grasp the function of these illustrations. A retributivist proponent of everlasting punishment isn’t necessarily arguing that certain crimes which one man commits against his fellow man merit everlasting punishment.

Rather, we cite certain paradigm-cases of evil as an intuitive argument from analogy. Hitler may or may not deserve eternal punishment for his role in the Holocaust. My argument doesn’t require that assumption.

Rather, I’m using examples like that to illustrate a principle, not prove a principle. It’s an appeal to common ground.

Take the popular catchphrase: “Lock ‘em up and throw away the key.”

Many think certain crimes cross a line of no return. That there’s no adequate punishment for crimes of that sort. That’s the principle I’m illustrating with paradigm-cases of evil.

ii) The ultimate basis for damnation is not one man wronging his fellow man, but a man wronging his God.

Now, for all I know, Hitler’s crimes against humanity may well merit everlasting punishment–above and beyond the way he wronged his Maker.

But what makes a wrongdoer deserving of hell, regardless of whatever else he may have done, is his failure to give God his due. Dereliction of duty to his Maker–to whom he owes his being and wellbeing. The exemplary good from whom all mundane goods derive.

iii) At the same time, that’s a difference of degree, not of kind. The degree of culpability is indexed to the degree of responsibility. We have higher obligations to those who have higher claims on our gratitude.

We have the highest obligations to God. But that represents the end-point of a continuum. We have a range of higher and lower social obligations–with God at one end of the spectrum. God is the exemplary good-of which every mundane good is a property-instance.

“Further, you are making the argument from intuition.”

I use arguments from intuition to counter arguments from intuition.

“You are using the remarks of an atheist philosopher to justify your position on hell.”

I’m building on a premise, which he supplies. A tu quoque argument.

“So you have to make your case to me using the criminal justice system, and Grayling's remarks about it, as an intuition pump. This is strategically problematic.”

No ethical appeal is going to be universally persuasive. What a deontologist finds convincing, a utilitarian may find unconvincing. What John Rawls finds convincing, Ernest van den Haag may find unconvincing. What a longshoreman finds convincing, an op-ed columnist for the New York Times may find unconvincing.