Sunday, October 11, 2009

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.

10 comments:

  1. "As a practical matter, we couldn’t inflict a hellish punishment on any offender, no matter how heinous the offense.

    I understand the notion of the eternal aspect of punishment since what is required for the punishment to cease (redemption) may not even be desired by the person being punished. Fair enough.

    However, we keep coming back to the notion that the punishment of Hell is neither "too long" nor too severe, not matter how unimagineable it may be.

    At the same time, we reject certain types of civil punishment in reality as being just that. We could keep someone alive for quite some time under horrific circumstances: find new and ever-increasing painful methods of torture that never end up killing them. I don't know: pull out their fingernails, burn them, whip them with spiked cat 'o nine tails, break their bones or smash their heads with rocks or flay the skin from their bodies.

    However, most of us reject such punishments as vile, inhumane and even evil.

    Why, though, if such things are within the realm of morality (and may even bear a moral mandate)? Is it because we are weak and decadent and simply don't have the stomach for it? Is it because we lack sufficient moral character to inflict such suffering and remain untainted by evil? (Is it even possible to inflict such things and remain unscathed?)

    My point is that in life, we refrain from inflicting certain kinds of suffering (even upon the most heinous of criminals) as being in themselves intrinsically evil.

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  2. Aside from Dante, what makes you think any of those kinds of punishments would occur in hell?

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  3. Peter:

    Revelation 20:10
    Matthew 25:41
    Luke 16:22-24
    Jude 1:7-8

    Scholars have argued for years whether these passages of Scripture are metaphorical or not in terms of whether Hell is indeed a place of fire (personally, I cannot think of any pain more excruciating than being burned).

    I wouldn't presume to have an answer.

    However, if we assert that there is no punishment too severe for the damned, I'd like to know why we reject certain varieties of punishment in this life as being cruel and unusual (such as the ones I mentioned).

    Is it because of the nature of the punishment itself, or is it because we as humans cannot perfectly implement such forms of punishment without grave risk to our own moral sensibilities?

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  4. JOHN SAID:

    “Scholars have argued for years whether these passages of Scripture are metaphorical or not in terms of whether Hell is indeed a place of fire.”

    Name some major commentators who take the fiery imagery at face value.

    “(Personally, I cannot think of any pain more excruciating than being burned).”

    Of course, therein lies the paradox. If the fire is literal, then the damned would be incinerated–in which case their punishment would not be everlasting. Indeed, it would only take a few minutes.

    If, on the other hand, the damned are fireproof, then they wouldn’t feel a thing

    “However, if we assert that there is no punishment too severe for the damned, I'd like to know why we reject certain varieties of punishment in this life as being cruel and unusual (such as the ones I mentioned).”

    There’s no internal relation between pain and punishment. A field medic may have to operate on a wounded soldier without sedation. That’s excruciating. Yet it’s not as if the field medic is punishing the soldier.

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  5. After reading these comments, I stop and slump in my easy chair, thinking, "wooosh" and then shutter to think some want me to be responsible for some part of getting out of here to there, .... God's paradise!

    Are you an idiot?

    Ah, why, yes, yes you are! :(

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  6. John said:
    ---
    However, if we assert that there is no punishment too severe for the damned...
    ---

    But who says that? As far as I know, Christians have always maintained that the punishment of hell would be exactly proportional to the sin of the sinner. Indeed, Jesus Himself said it would be more bearable for those who died in towns like Soddom and Tyre than it would be for Capernum, indicating that not all punishment is equal in hell.

    But part of the problem in your approach here is found when you said: "(personally, I cannot think of any pain more excruciating than being burned)." You view this as primarily physical pain, but that's not what the Scripture indicates.

    Indeed, there will be much weeping and gnashing of teeth, that is to be sure. But that hardly implies physical pain.

    Imagine that you intensely hate someone with every ounce of your being. But that person throws a great feast and invites you, indeed he forces you to go. Everyone else is having fun, but you hate the host with such passion that his food tastes like ash, his entertainment grates your nerves, you want nothing but to leave. Yet there you are. Forever.

    Why would the host need to torture you for you to experience hell? Just being there sufficies for that, and he has done nothing but offer you what everyone else recognizes as good things.

    Say he knows this would be your response, so instead of inviting you he tells you to stay away. He doesn't want you bothering the other guests who would enjoy him.

    The Bible says that God cuts off the wicked and they are cast out into darkness (which, by the way, means it cannot be fire). People were created, designed to be in a relationship with Him. How would it affect you to be forever cut off from what you were designed for? And it's not like your hatred for God would change by being removed from His presence.

    So there you would be, raging against God, for eternity. God doesn't have to do anything whatsoever. You are already in hell.

    So God could put you in heaven or leave you cast out; your location wouldn't matter, because your hatred of God would remain the same. No matter where you are, you will weep and gnash your teeth in your rage against Him.

    God doesn't torture you at all; you torture yourself. And it's eternal not because God makes it eternal, but because you will never love him.

    So let me ask, John. How would this view of hell affect your questions?

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  7. "How would this view of hell affect your questions?"

    Quite a bit: these are critical distinctions.

    I brought up the essay "River of Fire" which is closer to my own thoughts, although it was written by an Orthodox priest. One's perception of things can make the good look and feel hideous, and vice versa.

    Steve writes: "Name some major commentators who take the fiery imagery at face value"

    Well, I'm not sure if you consider John MacArthur a scholar, but you might check this out: http://www.biblebb.com/files/MAC/sg2304.htm

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  8. MacArthur is a popularizer. Try again.

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  9. "A popularizer"?

    Sorry, I'm a layperson, not a theologian. Can you give me an example of what you're looking for?

    Types like MacArthur and Mohler are pretty respected. So I thought.

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  10. John said...

    "Types like MacArthur and Mohler are pretty respected. So I thought."

    Respected popularizers.

    Major commentators on the books you cited include:

    Matthew: France, Hagner, Keener, Nolland.

    Luke: Bock, C. F. Evans, Fitzmyer, Marshall, Nolland, Stein.

    Jude: Bauckham, Davids, Gene Green.

    Revelation: Aune, Beale,

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