Ethical Subjectivism: Part 9

Justice and Punishment: What is Right and Fair? (continued)
 

Punishment (continued)
 

An important strategy in reducing the need for punishment is reward. Rewards have to be sufficient to reduce the level of social unrest to manageable levels. The use of reward accentuates punishments applied in the presence or knowledge of reward, as when one person is beaten while another is served ice cream. The amount of reward that has to be handed out limits the amount of punishment that can be meted out to members of society. Punishment is cannot be unlimited.

The particular form of punishment depends on ethical principles and moral maxims. For example, if a society adopts an unqualified maxim not to kill anyone, capital punishment is immoral. Such a maxim might be adopted, if the society held life as an ultimate value; i.e., if everyone has a right to life. In fact, very few societies posit such an unqualified right, as they reserve the right to kill enemies in war, especially when attacked by those enemies. Where capital punishment is abolished, it is because there is an emphasis on being humane. Since almost everyone wants to live because of a built-in biological urge, it is threatening to kill someone, even if that person is a notorious criminal.

Generally, killing is something people find hard to do; it has to be taught. Even vicious young boys who torture frogs and butterflies usually have to work their way up to outright killing. Most of us, even if we eat meat, prefer to leave butchery to the professionals, as killing is a gory business. There has always been a fraction of the population, usually males, ready, willing and able to hunt and kill game, as well as people. Because hunting game is a first step toward hunting people, the hunting and warrior classes have always been closely associated or identical. In the societies I know about, killing is always regulated because it is tabboo. Primitive peoples often believe in some form of animism which requires them to beg forgiveness for the forthcoming slaughter of animals. Strangely, in most cases, forgiveness is not required when killing enemies, but I think that is because enemies are usually considered to lack souls. Soulless human enemies are thus less than spirited animals, just hunks of flesh; i.e., robots. (Conversely, this makes robots or extra-terrestrials into horrifying terrorists when they kill humans, because they are merciless.)

Eating plants lacks the aura of killing. We have to eat something in order to live, so, somehow, plants are acceptable for sacrifice whereas animals generally are not. There are earth gods who are worshipped because of their control of the harvest, but these are separate from the plants we eat. Animals, on the other hand, are considered to have their own souls, probably because, like us, they can move about. Having a soul has something to do with mobility. It is the mobility of game that inspires the thrill of the hunt, the chase ending in capture. The more difficult it is to quarry the hunted, the more skilled the hunter feels. This difference of feeling has led the hunter-warriors to disdain the peasant-farmer since ancient times until recently. That disdain is largely relieved in advanced modern societies because doing military service is one of the few options for advancement available to rural people. In societies that have been urbanized, hunting, fishing, farming and killing have come to be identified as one class of behaviors - dealing with nature - which is disdained. That remove from dealing with nature is associated with dietary vegetarianism and opposition to capital punishment because "nature" is no longer a regular part of urban life.

What the foregoing implies is that killing is easier to accept when it is remote and quiet. People think it is much worse when killing is on public view, than when it happens without notice. On the other hand, people are attracted to the lurid scenes of injury and death, as demonstrated in "rubber-necking" after a ghastly highway accident (which often causes another accident). There is something about an accident that attracts, perhaps a desire to see mangled bodies, which might have something to do with our ghoulish scavenger past. Yet, most people are revulsed by the sight, if they happen to see the victims. Perhaps that is because we fear our own horrible deaths. Somehow, we cannot see dead people in the same way we pass by road kill without concern. (But, it is different if our car hits an animal.) These sorts of feelings have, I think, caused abolishing public punishment and public execution in particular. Societies that still conduct public punishments, whether mere whippings or stoning or execution, are now considered barbaric in the West. In the First World, criminals are put away somewhere not near us, where they cannot intrude into our world. The logic of those feelings leads either to the abolition of execution, or to death by lethal injection. The idea is that something quiet and probably painless relieves guilt about killing, especially if it is far away, so unnoticed.

I think spiritual beliefs are more strongly held among most of those who kill in order to balance one's apprehension about death. The military encourage religion, as it helps to believe one will survive into life after death when facing death. Islamic Jihadists instruct their suicide bombers to believe there are eternal rewards following their useful deaths. Primitive hunters believe their animals victims have spirits which will find "new homes" after they are killed. Thus, there is an eternal supply of gazelle. Moreover, enemies that die bravely are often honored, and sometimes eaten, as that shows they had spirit and deserve to live another life. All of that makes death a temporary, if painful, experience, not a permanent state. In all these cases, the victim's body is made to serve the killer's purposes, but the spirit is never so enslaved. The net effect of such beliefs is to reduce the fear and avoidance of death.

So, punishment is a means of social control based on social norms and mores. The method and extent of punishment depends upon its effectiveness. Effectiveness can be measured in several ways, but the most basic measurement is the correlation of punishment and social stabiliiy. Effective punishment causes people to go home, go about their business and 'sin no more.' None of this sounds very moral; rather, it is mechanical, the unthinking result of networked social arrangements. Nonetheless, if all of the foregoing are the facts and background of punishment, the ethical question remains, what justifies punishment?

Since the essence of punishment is harming someone, to ask that question is to ask when harm is permissible. Are there occasions when punishment is anything other than instrumental? That is, are there reasons for punishment other than as means to some other end? When punishment is used for social purposes, or when it is built into social functions, as in all the foregoing cases, it is merely a means to other ends. Therefore, in those cases, if punishment has any value, that value is determined by the ends it serves. But, does punishment have any value "in itself" beyond whatever consequential value assigned by an end? Before being quick to dismiss this question, consider that reward is the other side of punishment, so, if punishment is wholly instrumental, reward might be instrumental as well. That is certainly a position ethical consequentialists might hold as, by analogy, what is deserving or right is valued according to what is brought about, or, at first remove, what is proposed; i.e., its purpose.
 

Punishment is a specific form of harming governed by rules. It is not the arbitrary harming that occurs in an accident, or even the harm done someone without social sanction. The target of punishment can be a moral agent or other creature, for punishment is the consequence of specific behaviors or conditions. There is a moral question involved in the application of punishment based on the Principle of Proportionality; i.e., the punishment should fit the crime. Proportionalty requires us to determine the severity of the crime and use appropriate measures. Thus, if a skunk delivers a smelly cloud to our garage when frightened while digging through the garbage can, it is probably justified to attempt to scare off the animal, but it may not be justified to kill it. The skunk is only doing "what comes naturally," and is in no position to give us any satisfaction for its deed (retribution). It cannot clean up the garage (restitution), nor is their any purpose in torturing it because it won't learn to do otherwise (rehabilitation). Of course, sadists might take pleasure in its suffering, as when we cruelly kill hamless snakes because of our fear of their venomous cousins; but that pleasure is useless because it does not change the behavior of skunks or snakes. They are what they are.

Moral considerations may befall moral agents who overstep what Proportionality requires; i.e., Proportionality authorizes secondary punishment for moral agents that step out of bounds. That authorization is a consequence of the Principle of Authority, or as I prefer, the Principle of Limited Authority, which is commonly accepted in these days of democratic government. Limited Authority applies to moral maxims by specifying that such maxims must delimit their range of application. This amounts to the common sense notion in English law that the ordinary person should be able to tell when the law applies, and when not. Thus, speed limit signs show a given speed for easy comparison to speedometers required in all vehicles. (The law requires observance of the speed limit, and also the installation, maintenance and use of means to measure speed.) If one tries and fails to remove the skunk from one's garage, and then kills it instead of calling animal control, one has overstepped the authority allowed by law. It's the same in defending oneself against home invaders: the law requires only the use of necessary and sufficient force. When we kill or injure the skunk or the trespasser, there will be inquiry about the circumstances and whether the agent of harm is deserving of punishment. In Yuba County, California, for example, there was the notorious case of the young man who fell through a glass skylight and was severely injured while attempting burglarly. He sued the School District and won because the district was deemed negligent in its construction techniques. So, we have to take care in what we do, even if those harmed are otherwise culpable.
 

A main requirement of punishment, however motivated, is its effectiveness. This is an instrumental value; i.e., the chosen means must bring about the end. Permission of harm always depends on effectiveness, because, if the harm is ineffective, it is gratuitous. While many creatures suffer harm in nature, that harm is essentially amoral is it is done without moral causes or reasons. Gratuitous harm is similar to amoral harm in that it is done without moral cause or reason, but it is inflicted by a moral agent. Doing something gratuitously is chosen, not an event or happening or accident. A gratutity is something given freely, spontaneously, for no particular reason. While we usually think of gratuities as gifts that benefit recipients, gratuitous harm is a form of gratuity that injures recipients. (The mode of action, not its effect, is the central idea of gratuity.) Thus, when gratuitous harm is inflicted as punishment, it is without authority. If the agent of harm knowingly doles out gratuitious harm, those acts are immoral because they are not justified or condoned by authority and the agent is immoral for choosing to act unethically. If, however, a moral agent delivers a punishment, believing it is authorized and effective, we may excuse the agent from a first degree (premeditated commission) of reponsibility, while accusing it of second degrees of moral responsibility: complicity and being an accessory. That is, even when a moral agent unwittingly inflicts gratuitious harm, there is some degree of moral responsibility involved. How much responsibility is assigned to a moral agent depends on whether the agent could have known the correct authorities and procedures; i.e., whether the agent has done due diligence.

Thus, moral agents who carry out punishments are themselves subject to scrutiny and possible penalties for incorrect performance. This supports the idea that punishment must not only be effective, but exact as well. This may be summarized as a Rule of Moral Performance: acts must be properly designed and controlled to achieve their target. This Rule is not a Principle, but a guideline or heuristic used to measure past and proposed acts for compliance with principles. Positing such heuristics is analogous to rules of deduction in logic, or methods of argument in physical sciences. In order for the rule to make sense in our human way of thinking about morality, it must include a hypothesis of causation. Whether or not the Universe has causes and effects, the moral world includes parallel notions of means and ends. We simply cannot have responsibility unless it is possible to pin down who did it, and that requires - at least hypothetically - the idea that this act led to this result. ('She put arsenic in the tea, and then he died.') For moral purposes, the easiest assumption is that the world works as the various sciences describe it. While such a belief may conflict with one's metaphysical outlook, perhaps it is sufficient that the belief need only be held as a piece of knowledge, an hypothesis about the world, and not an ontological statement about the Universe.

At this point, I must note, once again, the presence of Similar Circumstances, that ubiquitous eraser of definitions. Similar Circumstances is a heuristic which injects itself into the Rule of Moral Performance and any other problem requiring evaluation and judgement of cases. When is one thing like another thing, and when not? The previously proposed principle of Good Enough is the answer to this question; i.e., there is some response which will satisfy. How does this apply to punishment? When is moral performance Good Enough?

Proportionality requires the punishment to fit the crime. How is that to be done? I do not think there is any general answer to this question, as it depends on the specifics of the case. Traditionally, the laws in most societies give leeway to judges or juries for just that reason: there is no way to predict what's involved in the myriads of possible cases. What is provided in the law are general classes of crimes and misdemeanors, and degrees of involvement, as well as records of other cases which constitute guidelines. Frequently used guidelines, or precedents, are very important in the case-oriented system, as they are used as much as possible in settling new cases. Well established precedents become general rules of procedure or maxims of judgement. When a case presents new circumstances, prior cases can serve as guidelines, but it remains to one's judgement how it will be handled.

This is not to subscribe to a particularist view, that there are no principles but only maxims based on cases. I think there are general, but not necessarily universal, ethical principles. Some moral maxims can be derived from those principles using heuristic rules associated with the principles or maxims. Some moral maxims stand alone, unprincipled. At a future date, those isolated maxims might imply a new or modified ethical principle, or be subsumed under an existing one, but that is not necessary. What is necessary is some form of record keeping and learning, which are social functions if moral knowledge is to be inherited. At the very minimum, the maxims which guide behavior have to be taught by example, so that they are incorporated into culture at the ground level. Everything we know about ethics originated that way, and continues so to this very day. Cases are part of the process by which social norms are created.

Similar Circumstances

Underlying the application of ethical principles to reward and punishment is moral judgement in cases. That judgement either uses, develops or invents moral maxims in relation to an existing body of judgements. Thus, before applying the law, aspiring lawyers and judges are sent to school to learn that body of opinion. Hopefully, what comes out of those studies is recognition of patterns of behavior, from intention to judgement to act to social consequence. Those patterns are interpreted causally in human societies, because that is the way human beings normally think; but, it could be otherwise. Whoever makes the judgements, there is implicitly an argument by analogy supporting them, because of the comparison with other cases. That analogy is "similar circumstances."

As I have learned in my adventures, woe unto those like myself who advocate similar circumstances in ethical arguments. The very first objection is when is this an X, and when a Y? Critics demand a clear, definitional difference between one or another thing. If such a sharp distinction cannot be made, then it is alleged the distinction is defective. Hence, "similar circumstances" is always deficient, because, by an application  of Zeno's argument, there is always some small difference between the proposed solution and the reasons for it. On the other hand, if some exact statement of "similar circumstances" can be made, it is never accurate because it always differs in some degree from actuality. This last is the problem all alleged triangles that are visible have: they always deviate from the Euclidean Form. So, one way or the other, similar circumstances is deemed a useless rule.

The problem is that actual moral agents have nothing else to go on. They have to compare cases, unless totally random judgements are acceptable. Of course, those who believe there are absolute or universal ethical principles are happy to throw out similar circumstances, because they believe their ethical princples or moral maxims are quite clear: do this, and don't do that. When we get beyond those commands, as in applying 'thou shalt not kill' while on the front lines of a war, all the problems begin. If there are no similar circumstances, then there is always the small matter of interpreting when the rules apply. Moral realists suffer that problem, for how do I know what I see is good or right? Somehow, at least for me, relying on the will(s) of the gods or built-in intuitions  is not an acceptable practice, especially because of the many atrocities that have resulted from such reliance.

Everything is connected to everything else. The lack of universal ethical principles is a justification of the Principle of Limited Authority. If either there is no absolute Truth or Good or Right, or we cannot know exactly what are those things, their authority is diminshed. The reason why authority ought to be limited is exactly that no one knows for sure the ultimate values, so there has to be room for changing evidence and opinions. This is a negative argument for an 'ought,' because one ought to do what is right, if only one knows what that is. I think it follows that, to the extent that one does not know what one ought to do, one should limit what does. This amounts to the common advice that one should hedge one's bets. The lack of certainty undermines social or any other authority for the same reason it advises individual caution: doing something involves a risk that it will not turn out as advertised. Limiting action because of risk is commonly called Prudence, which is not an ethical principle, but a rule or heuristic. Prudence is involved in applying similar circumstances.

Again, it is objected that allowing similar circumstances requires posting a definition of "similar," not to mention "circumstances." I reject both horns of the suppoosed dilemma by applying Good Enough. In fact, there is some point at which moral agents say "Enough!" and decide. If they did not, we would not have any moral maxims at all probably because we would not be here. So, what is "good enough?" The answer is simple enough: I don't know! At any rate, I certainly don't know in advance, nor does anyone else. In factories, machines make things to a tolerance. Whether cam shaft bearings are within tolerance depends on how, statically, they fit the engine and shafts mounted in them, and whether they exhibit the expected dynamic behavior. Tolerance is not an absolute; it is a relative measurement around a mean in a given setting. Tolerance is what works. Those who demand perfection, whether in principle or performance, never build a space shuttle nor do any other thing that involves risk.

We must be willing to accept being wrong in our judgements. There are convicts who are unfairly punished, as Americans have found out lately about prisoners in Illinois, Texas and elsewhere. There are bigots who sit as judges, teachers and other authorities. There are evil people who manage to become our rulers. Even more often the merely wicked or corrupt manage to obtain high public office. As long as anyone knows, and probably before History began, people have made mistakes and done wrong out of stupidity, ignorance, bias and ill will, as well as on account of True Belief. Those things are the simple fact of the matter, and something that needs to be explained in any account of ethics and morals. This is why I introduced the rule of Good Enough: it is a heuristic, not perfectly decisive. It allows us to make the best decision we can under the circumstances, even if that decision is ultimately proved incorrect, wrong or evil.