There’s been an idea
circulating for some time that retributive justice is morally and logically
founded upon the fact that we possess a thing called free will - some assumed
weird mechanism that disconnects human behaviour from the normal
cause-and-effect based evolution of nature. If, after all, human actions were
really ‘just’ the result of mechanistic microscopic processes, then whatever we
do would be entirely determined by the laws of physics and the configuration of
our environment. And if this were really so, then whatever somebody does is a
consequence of the fact that they could not have willfully done otherwise, in which case
there is no sense in which a person can be blamed for doing wrong. And if
culpability can not be established, then doesn't the validity of punishment
look suspect? So prevalent is this idea that it forms a major part of
contemporary legal philosophy.
Not only is this idea of
free will completely nonsensical, but the connection between it and the justice
of retribution is totally unfounded. Vengeance, after all is really just an
expression of anger. Is anger rational? Is it a reliable, systematic producer of well judged behaviour? Or is it merely a crude and ancient heuristic moderator
of human interaction that in a modern, enlightened era, we could do with much
less of?
There is simply no
logical link between culpability and the righteousness of retributive punishment, which somehow ‘repays a debt to society.’ Try to derive this principle
logically, and you will find it impossible without directly assuming the
desired outcome among the required premises.
What we must see instead
is that, in line with more agreeable consequentialist moral philosophies, the
only appropriate consideration when assigning juridical interventions is: what
actions will lead to a better society for us, and for our children to grow up
in? In this case, the problem justifying enforced treatment (e.g. imprisonment)
upon somebody who ‘couldn't have acted any other way’ disappears
completely. The enforced treatment is only indirectly determined by the
person’s actions, and is wholly derived from what we would like the world to
look like in the future. The relevance of past behaviour is limited to the
extent to which it serves as a predictor of future behaviour. What are
traditionally viewed as punishments - justice administered for the satisfaction
of the victims - become more properly viewed as treatments, designed to
minimize the cost for society of a person’s demonstrated antisocial tendencies.
The desire for revenge against a person who has committed wrongs against us is likely to be at least partly due to population
genetics, naturally selected for self-preserving behaviour (it is advantageous for me to create an environment in which another’s bad behaviour toward me makes
life uncomfortable for them), but the idea linking this concept of justice to
free will seems to be far more memetic than genetic: it is a matter of culture.
The concept that free will
is necessary and sufficient to entail the punishment of
moral failing seems to date back to Aristotle, in Nicomachean
Ethics. I’m no scholar of Aristotle, but to me its not clear
whether for him the appropriateness of blame has a consequentialist or an
absolutist foundation - are praise and blame desirable because they make
certain modes of future behaviour more likely, or because they try to balance
what has happened in the past?
If I had to speculate on
the reason for the cultural success of the notion specifically linking
retribution to free will, I’d guess that it was found to come in very useful
when dictators wrestled with the seemingly contradictory goals of being loved,
yet being utterly feared.
How can you be brutally
violent against your enemies, while remaining admired by the remaining
population? One way would seem to be to claim that violence
against certain people is morally just, even necessary. “It made me cry to do
that to him, but his crimes left me no choice.” Such pious adherence to absolute moral
principle, even when it demands the most unpleasant actions, might even elevate
a thug to saintly status, bringing joyous tears to the eyes of his devoted followers.
In the course of time,
it may be that neuroscience, experimental psychology, and the social sciences
will come to the conclusion that a better society is generally one in which
people’s innate desire for vengeance is somewhat fulfilled (I doubt this, as
I’ll explain shortly), but this would not undermine the principle that
treatment of criminals should be determined on purely consequentialist grounds.
If it happened to be that this desire was so strong, and so innate that no amount
of cultural evolution could remove it, and that the frustration of unplacated
victims of crime was so intense as to threaten civil unrest, then a retributive
element may need to be restored, but the ultimate reasoning would be the
rational evaluation of different courses of action, and selection in favour of
those strategies determined to be in society’s best interests.
The debate between
absolutist and consequentialist moral philosophies has been going on for a long time: consequentialism goes at least as far back as Machiavelli, around 500
years ago. Absolutism goes much further back, and persists still. This is
really quite surprising - its not a difficult problem to solve. All morality is
manifestly consequentialist, no matter what we might profess.
Wait a moment,
‘thou shalt not kill.’ It doesn't get much more absolutist than that does it?
No, it doesn't But just how absolutist is that exactly?
For starters, no society
implements principles like this in the strict absolutist way. Christians
believe that this basic rule, ‘thou shalt not kill’ was handed to them by their personal deity: thou shalt not kill means that killing is
absolutely wrong, under all circumstances - no exceptions allowed. Its never
stopped Christian nations going to war when they felt like it. It never
prevented Christian inquisitors burning people at the stake when the winter
nights were dark and cold. All assumed absolutist principles have always been
tacitly appended with a host of additional clauses beginning with the word
‘Unless...’ This is pure consequentialism.
Well, maybe those people
adding their arbitrary ‘unless’ clauses were simply bad moralists. Thou shalt
not kill is a good rule after all, right? Yes, typically. But what if the
person who you are invited to consider killing has a strong ambition to kill
you at the earliest convenient moment? Or alternatively, what if that person
suffers intolerably, with no hope of improvement, ever? Killing can not be said
to be categorically wrong under all circumstances - it all depends on the
consequences.
Finally, absolutist
versions of morality, in the sense that the content of the principle, “X is
wrong,” takes precedence over the actual likely outcomes of performing X, are
actually demonstrably incoherent. Lay aside the problem of what could possibly
be the source of any absolute moral principle. Suppose for a moment that such
principles really are set by some divine entity. What then? These
moral laws are obviously not physical laws, since we have the capacity to
systematically deviate (if we didn’t, they wouldn’t be called moral laws in the
first place). Thus, somewhere in the process of our minds, decisions are made
about whether or not to follow a particular moral principle at a particular
time. If we believe that Godzilla will roast us alive for eternity if we fail
to follow the rules, then those predicted consequences are what guide our
behaviour. Moral decisions are always the result of a consequentialist
evaluation of the options.
Going a little beyond
the standard terminology, then, morality is absolute, but with only one
rule: “whatever actions are revealed by a rational analysis to be most likely
to bring me closer to achieving my goals are the actions I should implement.”
This is exactly as I demonstrated in an earlier article on scientific morality. Furthermore, it illustrates that the founding principles of that
argument, (1) goodness does not exist outside minds and (2) morality is doing
what is good, are both properly basic: they are necessarily correct, and our
knowledge of them is not contingent upon empirical observations.
Lets get back to the
potential role of retribution in an advanced consequentialist morality. The
extent to which the will to see wrongdoers punished is genetically innate, as
opposed to culturally transmitted, is certainly an interesting question, and
one whose investigation would no doubt require some ingenious experimental
protocols. But I strongly suspect that the innateness of these feelings is
limited to an extent that can easily be overruled by rationality, allowing
vengeance to be effectively eliminated from all consideration in the problem of dealing with criminals. There are several
reasons for this suspicion.
Firstly, if we look
at the portion of the population most commonly found expressing anger, I’m fairly
sure it'll be small children. Anger is, we
all recognize, a childish emotion. We grow out of it. We learn (with great relief
to most, I presume) to control it, and when as adults we occasionally succumb
to emotional outbursts, we typically feel silly afterwards. As advanced society
has developed, we have continually learned, oh so painfully slowly, that anger
and resentment typically achieve little except the propagation of more anger
and resentment.
Secondly, there seems to be considerable evidence showing that the traditional practices of retributive justice have failed miserably. This paper, for example, argues strongly that imprisonment is ineffective at reducing the frequency and intensity of crime, and that alternative treatments such as education achieve greater reductions of recidivism. Another article summarizes some of its findings: "Research into specific deterrence shows that imprisonment has, at best, no effect on the rate of reoffending and often results in a greater rates of recidivism." The utilitarian advantages of a more rational approach seem to be there for the taking.
Thirdly, whatever
memetic components there are, supporting any in-built tendency to desire
vengeance, they can, by definition, be overcome by changing our culture.
Fourthly, religious
leaders throughout history seem to have made artful use of the philosophy of free will in order to
bolster acceptance of their reign of terror (hell doesn’t seem very fair, if
all your actions are fixed by the way God set up the boundary conditions, and
so damnation only gains a veneer of coherence if we have free will - a notion
that evidently has to extend to the mortal plane, in order to justify certain
historical hobbies of the major religions). This suggests that the hard-wired
machinery of anger was, stripped of any socially conditioned props, insufficient to
sustain the required levels of violence in our ever increasingly sophisticated culture.
When it comes to figuring out how to deal with crime, therefore, it is irrational to decide based on a shortsighted lust to see a criminal's debt repaid through suffering. Instead, we must look to scientific data to decide what courses of action minimize the costs to society. We must seek to understand what treatments will cost-effectively turn today's rule breakers into tomorrow's contributors to society, and what measures will economically eliminate the desire and the opportunity to commit crimes in the first place.
