Tag: philosophy

An Unexplored Consequentialist Element of Retributivism

The purpose of this piece is not to defend a particular interpretation of retributivism, of which there are many (see Cottingham, “Varieties of Retributivism,” Philosophical Quarterly, July 1979), but only to point out what appears to be a neglected consequentialist, element of retributivism, an element that suggests that at its most basic level, the consequentialist and deontological elements of retributivism are inexorably intertwined. 

The “core retributivist thought,” writes R.A. Duff in “Retrieving Retributivism” is “that what gives criminal punishment its meaning and the core of its normative justification is its relationship, not to any contingent future benefits that it might bring, but to the past crime for which it is imposed” (Retributivism: Essays on Theory and Policy, Oxford, 2011, p. 3).

Duff argues that punishment is necessary to communicate condemnation of wrongdoing to the larger society. But why is it important to send a message to the larger society that it condemns wrongdoing or, more particularly, those who do wrong? The most common answer, of course, is that this message serves to deter others from doing wrong. 

Unfortunately for this view, there is ample evidence in terms of statistics comparing rates of crime and their relation to the severity of legal punishments for those crimes, that the threat of punishment is not a particularly effective deterrent to crime (c.f., e.g., “Five Things About Deterence,” National Institute of Justice). But what if there were a deterrent aspect that could not be measured in that way? What if the moral message communicated to the larger society by punishment based on desert rather than rehabilitation were that human beings inherently dislike antisocial behavior and people who engage in it? What if the importance of that message were less to deter the incorrigibly antisocial than to drive home the message to the rest of the community, which is to say, the overwhelming majority of people in that community, that human beings value positive social behavior and hence reward it with social approval? What if that message served to reinforce positive social bonds and a feeling of commitment among individuals in that community to the welfare of others, a commitment without which rates of crime would be even higher than they presently are? 

The effect of the absence of that message on rates of white-collar crime is well documented in works such as  James William Coleman’s The Criminal Elite: Understanding White-Collar Crime (Worth, 2005), and Jed S. Rakoff’s “Getting Away with Murder” (New York Review of Books, Dec. 3, 2020). When crimes are not punished, or are not punished with a severity sufficient to negate any material gain associated with them, the message that is sent, not merely to the wrongdoers, but to the larger society, is that human beings not only do not condemn antisocial behavior, but that they tacitly approve of it. Human beings are so profoundly social that the arguably paradoxical message that they generally approve of antisocial behavior cannot help but positively encourage such behavior. 

This tacit approval of antisocial behavior has two distinct negative repercussions. First, it serves to erode commitment to the common good, or fellow feeling, by effectively celebrating self-interested behavior and hence directly encouraging antisocial behavior in general, and criminal behavior in particular. Second, it serves to create an every-man-for-himself environment where even those who might actually retain some fellow feeling and who would otherwise be averse to behaving in antisocial ways, or to committing crimes, would be indirectly encouraged to do so by the fear that that may be the only way to survive in an environment where they cannot count on the mutual help and support of others in their community. 

Gerald Gaus explores the social aspects of retributivism in “Retributive Justice and Social Cooperation” (Retributivism: Essays on Theory and Policy, Oxford, 2011, pp. 73-88), but he couches them game-theoretic terms based on practical interest, rather than on emotions such as fellow-feeling on the one hand, and fear on the other. 

The implication of these observations are that some form of retributivism appears to be essential to maintenance of positive social bonds without which crime would be an even greater problem than it is. That is, it appears we need to condemn, in some sense anyway, not merely the wrongdoing, but the wrongdoer, and not just on a practical level, but on an emotional level as well, in order to maintain harmonious communities based on trust, mutual respect, and cooperation. 

How Animals Think

Roger Scruton argues in “If We Are Not Just Animals, What Are We?” (New York Times, March 6, 2017) that while human beings are certainly animals, we are actually more than animals in that “[w]e human beings do not see one another as animals see one another, as fellow members of a species. We relate to one another not as objects, but as subjects.” 

That, according to Scruton, only human beings are able to see one another as subjects rather than simply objects, is the foundation of moral obligation, and it is this, he argues, that makes us inherently superior to other animals. 

But if, in fact, animals are incapable of conceptual thought, as most philosophers appear to believe, then animals cannot possibly relate to one another as members of a species, because that would require that they had some kind of concept of what a species was, which, it seems safe to say, they could not. I don’t mean to disparage animal intelligence. My point is that it took human beings millennia of contemplation of the “zoosphere” and their place in it, to come up with the concept of species, whereas we have no evidence that other animals have historically engaged in such contemplation. 

In fact, one is more or less compelled to conclude that animals have no choice but to relate to one another as individual subjects, subjects with whom they feel a more or less immediate sympathy or antipathy. This can be seen, I would argue, in the countless examples of animal cooperation and friendships across species, as well as in cases of animals adopting (and nursing) infants of species other than their own. That is, what they see, presumably, is a helpless individual whom they are in a position to help. Not every animal mother chooses to help such helpless infants, but this only reinforces the point that animals are not only individuals, but appear to view one another as individuals rather than as members of their own, or other, species. 

If animals are incapable of conceptual thought, then it appears Scruton has our situation relative to animals the wrong way round. Only human beings would be able to reduce others to objects in the sense Scruton asserts animals do. Only human beings would be able to make generalizations based on the concept of species because only human beings could have such a concept. And, indeed, we’ve objectified countless numbers of human beings simply by deciding they didn’t count as “human beings,” but as creatures of some lower order. 

Animals, on the other hand, if, in fact, they are incapable of conceptual thought, can’t do that. They’re compelled to related to other animals as individuals, in precisely the “‘I’ to ‘you’” sense Scruton points out Martin Buber “made central to the human condition” (emphasis added). In that sense, animals actually appear to be ahead of us morally, if not intellectually. Not only do they consistently relate to others as individuals, they don’t cloak their likes and dislikes of specific others with the mantel of objective science because, well, they can’t. 

It’s not my purpose here to defend the view that animals are incapable of conceptual thought, but only to point out a problem with Scruton’s position. The view that animals are incapable of conceptual thought is common among philosophers and likely the view that Scruton had when he wrote the piece in question in that he clearly assumes the vast superiority of human relative to animal intelligence is not a matter of degree, but of kind. 

But if that’s the case, then Scruton’s argument that only human beings can relate to one another as subjects rather than objects is incoherent.