DRAFT: COMMENTS WELCOME

The Pieties of Impunity

Leo Zaibert∗

Whatever else can be contested about punishment, the purely conceptual point that, in one way or another, punishment is supposed to cause suffering (insofar as it is supposed to be painful, unpleasant, undesired, etc.), seems to be beyond dispute. From a normative perspective, however, the question of how to deal with this suffering has been, understandably, an endless source of philosophical bewilderment. Whether this suffering is a bad thing (which can somehow be countered by some other good things it may help to bring about) or a good thing, are questions which have given rise to the deepest debates in punishment theory. In what follows I shall seek to defend the latter position, a position typically ascribed to one particular school of thought: retributivism.

Like most protean philosophical concepts, however, the term “retributivism” has become rather unmanageable, as considerable obscurity surrounds its use. Some have indeed suggested that, in light of its obscurity, the notion has become actually useless.1 In spite of this obscurity, however, others suggest that retributivism is, clearly, very bad and dangerous.2 Sometimes it is the same authors who assert that the exact meaning of retributivism is elusive and that it is a very bad and dangerous position. The unstable but widespread position seems to be more or less this: “We are not sure what retributivism actually means, but whatever it may turn out to mean, it ought to be rejected”.

Discussing the merits and shortcomings of retributivism is a very old enterprise – we can discern it as early as in Plato’s Protagoras, for example. Most attacks on retributivism have come from utilitarians, or from proto-, quasi-, or crypto-utilitarians. When it came to the

                                                                                                                         ∗ Professor of Philosophy, Union College, zaibertl@union.edu. 1 See, amongst many others, John Cottingham, “Varieties of Retribution” Philosophical Quarterly 29 (1979): 238-246; David Dolinko, “Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment”, Law and Philosophy 16 (1997): 507-528; and Victor Tadros, The Ends of Harm: Oxford: Oxford University Press (2011). 2 Amongst really many others, see Victor Tadros, op cit.; James Q. Whitman, “A Plea Against Retributivism”, Buffalo Criminal Law Review 7 (2003): 85-107, and Harsh Justice: Criminal Justice and the Widening Divide between America and Europe, Oxford: Oxford University Press (2003). Perhaps the most outrageous caricature of retributivism is to be found in Martha Nussbaum’s otherwise interesting and erudite “Equity and Mercy” (Philosophy and Public Affairs 22 (1993): 83-125) where retributivism is presented as harsh, cruel, and somehow condoning random assaults (by Andrea, the protagonist of Andrea Dworkin’s Mercy), and at any event committed to a “a certain neglect of the particulars” (89).

2    

justification of punishment, the two classical schools of thought were retributivism and utilitarianism: to attack one of these, was, eo ipso, to defend the other. But things have gotten murkier, and the current cycle of retributivism-bashing differs from its previous iterations. Retributivism’s new attackers do not typically present themselves as thereby defending utilitarianism (even if they, in effect, are doing so). Rather, the new attack is somewhat roundabout: the attack is advertised as aiming at state (over-)punishment. Retributivism is assumed to be somehow responsible for the excesses in state punishment, and that it is why, so the story goes, it ought to be rejected.

Never before has the condemnation of the excesses of state punishment – and of state pseudo-punishment – been as widespread as it is now. There is so much wrong, so much seriously wrong, with the ways in which modern states punish (and otherwise victimize)3 people, that this new attack against retributivism is from the start surrounded by a halo of respectability. The anti-retributivists are against abuses of the state’s punitive power: they cannot escape being perceived as the good guys. Any position that seeks to curb the excesses and injustices which allegedly enlightened, democratic, and otherwise advanced societies inflict on human beings must be pretty good, or at least on the right track. Similarly, defenders of retributivism tend to be perceived as if not quite the villains of the story, at least as the insensitive, cruel, and unenlightened characters.

I shall endeavor to show that while retributivism has indeed been used in too many ways, properly understood retributivism is not to be blamed for the excesses and injustices of contemporary criminal justice institutions. Of course, it is possible that, although blameless, retributivism is still somehow causally related to all these injustices. But even in such a case, we ought to be careful before we condemn retributivism. Retributivism is not immune from being hijacked, and most references to retributivism by politicians and activists in the United States are indeed best seen as hijackings. To blame philosophical retributivism – as opposed to political rally retributivism – for the incarceration rates in the United States, or for over-criminalization, or over-punishment, or for the death penalty, is quite like blaming Islam for the attacks on the World Trade Center, or like blaming The Beatles for the murder of Sharon Tate.4

                                                                                                                         3 Note the extraordinary proliferation of so-called preventive justice measures: see, e.g., Andrew Ashworth’s and Lucia Zedner’s “Preventive Justice Project” at http://www.law.ox.ac.uk/projects/PreventiveJustice. Many of these are clearly euphemisms which seek to hide their true punitive nature. For a discussion of the truly punitive nature of the allegedly merely administrative immigration law (in the United States) see Leo Zaibert “Uprootedness as (Cruel and Unusual) Punishment”, New Criminal Law Review (2008): 384-409. 4 James Q Whitman, in the works cited above – and in his talk to this group a few months ago – makes, I think, this mistake. I think that a similar mistake can be seen in Vincent Chiao’s Against Punishment draft.

3    

What I shall offer here as “properly understood” retributivism is not yet another, new version of it; rather, I wish to emphasize a well-known claim historically made by retributivists. Sometimes the claim is offered as one element – amongst many – of someone’s account of retributivism; in contrast, I will here insist that this claim – and nothing else – is the essence of retributivism. The claim is, simply, that deserved punishment is intrinsically good. A fortiori, then, the suffering that deserved punishment entails is intrinsically good too. As a matter of fact, a certain convergence of opinion – including the opinions of both retributivism’s friends and foes – around the accuracy of this claim is becoming apparent in the literature.5 This convergence is, I think, a welcome development. Ideally, this development should be accompanied by an analysis of the implications of specifying that the good of deserved punishment is not just any garden-variety good, but, importantly, an intrinsic good. What follows is meant to be a part of such analysis.

The distinction between those who find retributivism empty and those who find it dangerous dictates aspects of the structure of the paper. In the first section below I shall address some of the concerns from the first group of authors: those who fail to pay attention to the importance of the connection between retributivism and a certain theory of value. I will argue that the overwhelmingly typical map of the territory of punishment theory stands in need of major revision. In the second section I will discuss those authors who, although alive to the importance of intrinsic value, still are hesitant to attach intrinsic value to suffering as such. As a result, these influential authors end up flirting with impunity, or quasi-impunity, in ways which I find problematic. In the final section I shall discuss the ways in which retributivism’s concern with intrinsic value – including the value of suffering – can, perhaps surprisingly, in fact be mobilized to criticize some of the most egregious and repugnant aspects of our dysfunctional criminal justice systems.

I. Well, Go On, Explain!

                                                                                                                         5 See Mitchell Berman, “Two Kinds of Retributivism”, in Antony Duff and Stuart Green (eds.) Philosophical Foundations of Criminal Law, Oxford: Oxford University Press (2011): 433-457; and “Rehabilitating Retributivism”, Law and Philosophy 32 (2013): 83-108; Joel Feinberg, “Justice and Personal Desert” in Doing and Deserving: Essays in the Theory of Responsibility, Princeton: Princeton University Press (1970); Michael Moore, Placing Blame: A Theory of the Criminal Law (1997); Victor Tadros, op. cit.; Leo Zaibert Punishment and Retribution, Aldershot: Ashgate (2006) and “The Instruments of Abolition, or Why Retributivism is the Only Real Justification of Punishment”, Law and Philosophy 32 (2013): 33-58; and the references contained in David Dolinko’s “Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment”, Law and Philosophy 16 (1997): 507-528, at 516 (fn. 27). For the view that deserved punishment is merely “not intrinsically bad”, See Douglas Husak, Overcriminalization: The Limits of the Criminal Law, Oxford: Oxford University Press (2008): 200 ff. and see generally his, Holistic Retributivism¸ California Law Review 88 (2000): 991-1000.

4    

The standard understanding of the field of punishment theory is that it is but one of the many possible battlefields in which the great war between teleological and non-teleological (or consequentialist and non-consequentialist, utilitarian and Kantian, etc.) comprehensive moral doctrines is waged. Retributivism, according to this widespread understanding, is just the position which, when discussing punishment, an adherent of a non-teleological comprehensive moral doctrine needs to endorse; consequentialism (about punishment) is just the position which, when discussing punishment, an adherent of a teleological doctrine needs to endorse. Fortunately, a consensus in the literature is beginning to emerge whereby this understanding is in fact flawed. Defenders and critics of retributivism alike now agree that retributivism can be espoused by both adherents of non-teleological and teleological comprehensive moral doctrines; similarly, adherents of both teleological and non-teleological comprehensive moral doctrines can endorse consequentialism.6

While the recognition of the theoretical independence of one’s comprehensive moral doctrine and one’s favored justification of punishment is a welcome development, it is not enough. More important yet is to realize that while not an instance of the general debate opposing teleological and non-teleological comprehensive moral doctrines, the debate between retributivists and consequentialists regarding punishment can, in fact, be seen as an instance of another global normative debate. This other debate concerns the existence and distribution of intrinsic value in the world. Consequentialists about punishment assert that there is nothing intrinsically valuable about punishing people (at least not immediately so: nothing intrinsically valuable about the punishment in itself); retributivists, in contrast, believe that punishing the deserving (to the extent that they deserve it, etc.) is intrinsically valuable, in itself. And it is in this, I submit, that the essence of the debate regarding punishment’s justification consists.

But not everyone agrees with the importance that I (and others) attach to a punishment theorist’s position vis-à-vis intrinsic value. Many theorists appear not to even recognize that the discussion of intrinsic value has any role to play in the debate between retributivism and consequentialism.7 I will discuss here only a couple of insightful authors. The title of this section, my reader will have recognized, comes from John Cottingham’s famous “Varieties of Retribution”, that influential piece in which he bemoans the looseness which surrounds the term “retributivism”. So “imprecise and multi-vocal” has, for Cottingham, the term “retributivism” become, that he believes that “it is doubtful whether it any longer serves any useful purpose”.8 One of the central problems that Cottingham sees in the use of the term “retributivism” is an alleged emptiness.

                                                                                                                         6 See references to Berman, Moore, Tadros, and Zaibert above. 7 James Q. Whitman, for example, and to mention but one single author amongst many (whom you have heard recently), has not uttered a word about this discussion. 8 John Cottingham, “Varieties of Retribution” Philosophical Quarterly 29 (1979): 238-246, at 238.

5    

Suppose I say: ‘I’m a retributivist: I believe that where punishment is deserved this is sufficient to justify it”. I think the initial reaction of that ubiquitous figure the ‘intelligent layman’ would be: ‘Well, go on, explain! Where does the retribution come in?’.9

The “retribution comes in”, so to speak, when we realize that the retributivist’s crucial assertion is not quite that desert is sufficient to justify punishment but rather that deserved punishment is intrinsically valuable, an intrinsic good. After all, very few retributivists really endorse the view that the mere fact that deserved punishment is intrinsically good gives us an ultima facie, full-blown justification of it.10 It is the concern with the intrinsic value of deserved punishment that effectively distinguishes retributivists from their consequentialist counterparts who see punishment as at best instrumentally good. Independently of whether or not the retributivist position thus understood turns out to be attractive, it strikes me as neither obscure nor useless.11

Retributivists believe that sometimes punishment is intrinsically good: when deserved; whereas consequentialists deny this. Interestingly, to the extent that retributivists see deserved punishment as intrinsically valuable, they are not thereby opposed to all forms of utilitarianism. The only obvious, necessary tension between retributivism and any version of utilitarianism obtains when that version endorses the claim there is nothing which is intrinsically valuable in pain or suffering. But the opposition is then not really with utilitarianism as such, but with this thesis about intrinsic value. G.E. Moore’s ideal utilitarianism, and also John Stuart Mill’s utilitarianism, are compatible with retributivism thus understood. The only version of utilitarianism flatly opposed to retributivism is Jeremy Bentham’s.

Once it is realized that the distinctive aspect of retributivism is its recognition of the intrinsic value of deserved punishment, then we can return to Cottingham’s example, explore further ways of expanding it, and see whether his dissatisfaction will persist. Suppose that Sam were to say “I am in love with Susan: I believe that where it is possible for me to please her, this is sufficient to justify my endeavoring to please her”. Will Cottingham here also feel compelled to ask “Well, go on, explain! Where does the love come in?”. Similarly, Martha may say “I am an opera-fan: I believe that where a good Opera production is an option, this is sufficient to get me to try to get to the Opera-House”. Will Cottingham’s “Well, go on, explain! Where does the fandom come in?” make sense here too? Sam’s love for Susan does explain his endeavoring to                                                                                                                          9 John Cottingham, “Varieties of…” op. cit., 239. 10 Not even Michael Moore, arguably the staunchest proponent of retributivism, really proposes this (although he contradicts himself: for a discussion of that contradictions, see Leo Zaibert, Punishment and…, op. cit., 153 ff.). 11 Admittedly, it would still appear obscure and useless to non-cognitivists, nihilists, and skeptics who may find the very notion of intrinsic value itself, quite aside from its mobilization within the context of punishment theory, obscure or useless – but they fall beyond the purview of this paper.

6    

please her, just like Martha’s appreciation of opera explains her desire to attend operas, and just like the retributivist valuing deserved punishment explains her desire to see it happen.

The fact that pleasing people or going to the opera are normatively neutral courses of action, whereas punishing people is not – insofar as punishment, by definition, presupposes suffering – should not distract us here. What unites these cases is that Sam the lover, Martha the melomaniac, and our imagined retributivist, all value something for its own sake – respectively: Susan (or Susan’s happiness), opera (or music more generally), and deserved punishment (or justice more generally). Only if insanity is added to Sam’s love can we imagine him seeking to please Susan at all costs; only if Martha were actually mad would she resolve to go to every possible opera production, no matter the circumstances. And only if a retributivist is similarly insane or mad would her valuing deserved punishment cause her to try to ensure that every deserving person gets punished.

The lesson thus far is that while retributivism has undeniably been historically understood simply as a justification of punishment, it may be better understood as, first and foremost, a philosophical theory as to the nature of (some sorts of) value. We may indeed be better served by inquiring as to what exactly, for the retributivist, is supposed to be doing the justificatory heavy-lifting. And the answer is that it is the intrinsic goodness of deserved punishment: because only retributivists see some instances of punishment as intrinsically good, they are the only ones who can be in a position to actually justify punishment – non-retributivists can, at best, put up with punishment.12 But unless a retributivist is insane along the lines sketched above, she will care about all sorts of other considerations when deciding whether this or that actual infliction of punishment is justified. And so better do the consequentialist too – except that the consequentialist will perforce exclude the (alleged) fact that punishment is deserved from consideration. Only the retributivist cares about the importance of desert; and for any retributivist worth its salt desert is very important.

Cottingham’s disregard for the problem of value leads him to espouse an odd skepticism about extending the scope of the cases we are considering. So, for example, Cottingham is not too keen on seeing commonalities between the position a retributivist may espouse vis-à-vis punishment and someone who may be in favor of awarding scholarships based on merit. In his own words:

To put the point more precisely, if someone claims that a sufficient condition for the justification of university scholarships is that they are deserved, does this mean that he has a retributive theory of scholarship-awarding? Perhaps it does; but only in a rather old-fashioned sense of the term ‘retribution’, meaning any kind of reward or recompense (“never did a charitable act go away without the retribution of a blessing”). If we are allowed to unpack and amplify the desert

                                                                                                                         12 See Leo Zaibert, “The Instruments of…”, op. cit.

7    

theory in this way, the claim becomes that punishment is justified because it is a deserved requital or reward for wrong-doing.13

Needless to say, the discussion of desert is not restricted to punitive matters: some students do deserve scholarships, just as much as some squash players do deserve to win some matches, and some dancers deserve to win some competitions. There is nothing “old-fashioned” about that. Perhaps there is something “old-fashioned” or otherwise odd about using the term “retribution” to cover non-punitive matters – but not about seeing the discussion of desert covering areas other than punishment.14 Imagine that Bob and Susan are in charge of deciding who should get scholarships in their university. Bob believes that the scholarships should be given to the students who deserve them the most, whereas Susan believes that the scholarships should go to the students who are likeliest to be most motivated by receiving it (and thus to become greater benefactors to society, etc.). The difference in rationale for awarding scholarships between Bob and Susan clearly resembles the different justifications for punishment between retributivists and consequentialists. It is only a matter of linguistic fiat and tradition that we do not refer to Bob here as a retributivist about scholarship-awarding. Like the retributivists (about punishment), Bob believes that when the most deserving student gets the scholarship, this is intrinsically good; whereas Susan denies it.

As a final blow against the efforts to base retributivism on the notion of desert, Cottingham claims that

viewed as an exercise in justification, this account [exhibits] the curiously jejune quality […] that it reduces to the bald assertion that it is simply just that the offender should be punished.15

But I fail to see what exactly is supposed to be jejune about the assertion that it is just that the deserving offender be punished. To the extent that justice is valued, then to argue that such and

                                                                                                                         13 John Cottingham, “Varieties of…” op. cit., 239. 14 For whatever it is worth, this oddity has not always obtained, as the seventeenth century quotation which Cottingham takes from the Oxford English Dictionary reveals. (And the oddity does not obtain, or not to the same degree, in other languages.) In fact the Oxford English Dictionary contains a variety of non-punitive uses of “retribution”: not only are blessings forms of retribution, but respect, rewards, gratitude, bliss were spoken of as retributive. In other periods, the idea of meritorious retribution appears not to have been odd at all.14 Insofar as I am not interested in philological investigations, I am happy to stipulate that it is old-fashioned to talk about the retributive theory of scholarship-awarding (but see Leo Zaibert’s gesturing toward a “retributive theory of forgiveness” in his “The Paradox of Forgiveness” Journal of Moral Philosophy 6 (2009): 365-393). 15 John Cottingham, “Varieties of…” op. cit., 239.

8    

such course of action is just strikes me as not jejune at all – particularly when contrasted to the alternative, which explicitly denies that punishing a deserving offender could be, in itself, just.

Cottingham represents but one eloquent instance of one common position visible in the specialized literature: to simply ignore the problem of value when discussing punishment.16 Consider now an author who while engaging with the problem of value in the context of punishment, ends up dismissing its importance. David Dolinko begins his “Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment” by gesturing towards the same sort of difficulty in defining retributivism which undergirds Cottingham’s efforts.17 Soon after he registers what he takes to be retributivism’s fuzzy conceptual boundaries, Dolinko, unlike Cottingham, tackles the problem of intrinsic value heads on.18 Yet, his conclusion is that the discussion of the intrinsic goodness of (deserved) punishment generates more heat than light. In my estimation, Dolinko’s conclusion is ultimately erroneous.

Dolinko deploys two main arguments against what he dubs “the intrinsic goodness claim” (roughly the claim I defend here: that deserved punishment is intrinsically good). First he focuses on the work of Michael Moore, and then notices that Moore defends both the intrinsic goodness claim, and another claim, which Dolinko dubs “the desert claim” (roughly: that desert provides an ultima facie justification of punishment). Dolinko thinks that these two claims are in tension, and that it is a mistake to endorse both; he thinks, moreover, that the tension between these two claims constitutes a serious problem for retributivism. I think that Dolinko is only partly right. Moore’s endorsement of both claims is indeed problematic;19 but this is, obviously, only a problem for Moore’s retributivism, not for retributivism as such. Since I, for example, endorse what Dolinko calls the “intrinsic goodness claim”, but not what he calls the “desert claim”, my version of retributivism clearly does not face the problem that occupies most of Dolinko’s attention.

Of course, Dolinko may then reply that versions of retributivism like mine, which only endorse the intrinsic goodness claim and dismiss the desert claim, are jejune for a different reason: for there would be so little justificatory work being left for desert to do. What is the point, Dolinko would ask, of insisting that deserved punishment is intrinsically good if one is not to insist that therefore, we are justified in making sure that people who deserve to be punished actually get punished? But this sort of objection is specious: it imposes upon the retributivist an over-simplified sense of justification (whereby the only thing that enters into the justificatory calculus is desert), and then it criticizes the retributivist for allegedly endorsing that very over-simplified sense of justification. The retributivist can be as ecumenical as anyone else when it                                                                                                                          16 A list of authors who ignore the discussion of value would be unmanageably large and idiosyncratic. Most authors not listed above as engaging with this discussion do in fact ignore it. 17 David Dolinko, “Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment”, Law and Philosophy, 16 (1997): 507-528  18 For a discussion similar to Dolinko’s, see Mitchell Berman “Two Kinds…”, op. cit. 19 See Leo Zaibert, Punishment and Retribution, op cit., 154 ff.

9    

comes to justifying punishment – as a matter of fact, and as I shall argue below, the retributivist is more ecumenical than anyone else. What distinguisher her view from the alternatives is that she will not exclude from consideration, as her opponents do, the discussion of whether or not punishment is deserved.

But, even if we look past his criticisms of Moore, we find that Dolinko thinks that the intrinsic goodness claim, taken in isolation, faces an insurmountable problem: that “a non-retributivist might endorse” it.20 That way of putting matters of course makes things easy for Dolinko: only if you endorse the intrinsic goodness claim you are a retributivist, yet non-retributivists may endorse it as well. But what Dolinko really means by a non-retributivist is a person endorsing a teleological comprehensive moral doctrine. Thus understood, it is true that some utilitarians, for example, could endorse the intrinsic goodness claim. So what? Rather than a problem, this is the beginning of wisdom: it is the recognition that the widespread way of conceiving of the map of the retributivism-consequentialism debate is flawed, and that the map suggested here is more promising. Some utilitarians can recognize the intrinsic value of deserved punishment. True. So much the better for them. As we shall see, however, important critics of retributivism do deny the intrinsic goodness claim.

II. Good Suffering

Perhaps, however, those who find desert-based retributivism jejune (or otherwise uninspiring) do so because they wish that it would provide an answer to the question of why desert renders punishment just. To be clear, however, the same hope could attach to non-retributivist approaches, thus rendering them “jejune” as well. For example, when consequentialists affirm that punishment is just because it deters, or rehabilitates, or incapacitates, or educates, the question as to why deterrence, rehabilitation, incapacitation, or education might render punishment just is equally pertinent. Still, in some sense, it may appear as if these other justifications of punishment are not as jejune as retributivism, for they do tell us more as to why this or that instance of punishment is just. So when consequentialists say that this or that infliction of punishment is just because it deters, and we ask them why deterrence has this justificatory power, consequentialists will tell us that the act we are punishing is bad for society, and that deterring people from performing those acts in the future is therefore good for society.

But this, of course, just pushes the question one level up: why is the act whose commission we wish to deter bad for society? Go on, explain! And we could then continue pushing the question further, either generating a veritable infinite regress (a never-ending series of “why” questions), or else finally reaching something which utilitarians would value in itself, something which they deem intrinsically valuable: something like pleasure, or the satisfaction of (rational) desire. The never-ending series of “why” questions is not an attractive option: perhaps                                                                                                                          20 David Dolinko “Retributivism, Consequentialism…” op. cit., 517.

10    

it is not jejune, but there surely are obvious, well-known reasons to avoid the explanatory deficits of infinite regresses of this sort. The other strategy, to see either pleasure or the satisfaction of desire as an intrinsic good, has been, in my estimation, authoritatively discredited by G.E. Moore, over a century ago. And G.E. Moore’s arguments have since become the standard fare of metaethics.

G.E. Moore, of course, was convinced that morality is a matter of creating the greatest amount of intrinsic value in the world; he just did not think that pleasure or the satisfaction of (rational) desire could be seen as intrinsically good.21 What is important, then, is to stress that, on the best interpretation, when opponents of retributivism attack the intrinsic value of deserved punishment they do not necessarily demonstrate an opposition to intrinsic value as such – but to the intrinsic value of deserved punishment specifically. On pain of generating an infinite regress, the opponent of retributivism, too, must rely, eventually, on something being intrinsically good, it is just that that something is not deserved punishment. (On a worse interpretation, opponents to retributivism, would be upbraiding retributivists for relying on intrinsic value, not noticing that they appeal to it too.)

The importance that the intrinsic goodness of deserved punishment has for the sort of retributivism that I defend can, however, be easily underestimated. After all, I (unlike, say, Moore – whom Dolinko rightly criticizes) readily admit that the mere fact that deserved punishment is intrinsically good does not generate an all-things-considered duty to punish the deserving. Nothing on my account suggests that a retributivist must endorse the view that because some punishment is deserved (and therefore that its infliction would be intrinsically good), someone (the state, or anyone else) has an obligation to inflict it. It is easy to imagine situations in which an intrinsic good should not be brought about: either because it conflicts with other intrinsic goods, or even with other instrumental goods. Within the context of the state, where so many political ideals, so many issues of standing and of symbolic meanings, enter into play, it is hard to imagine someone defending the thesis that governments should try to match punishment to desert and that that is the end of the story. Such a position would be extraordinarily flat-footed, and also extraordinarily dangerous. But then, being so easily defeasible, the alleged intrinsic goodness of deserved punishment may begin to look ineffectual.22

In principle, however, intrinsic goodness claims are quite independent from claims having to do with the stringency of the obligations, if there are any, to which they may give rise. And yet, the fact that the retributivist believes that punishing the deserving is intrinsically good

                                                                                                                         21 G. E. Moore, Principia Ethica, Cambridge: Cambridge University Press (1992). 22 See, e.g., the unfairly neglected article by Lawrence H. Davis (“They Deserve to Suffer”, Analysis 32 (1972): 136-140), where Davis compellingly argues that one could be committed to the view that deserved suffering is intrinsically good and simultaneously be a person who is always opposed to punishment, a full-blown abolitionist.

11    

does have the obvious, and important, consequence that, other things being equal, the retributivist is likely to at the very least recommend punishing the deserving. The crucial difference with the consequentialist is that the retributivist is significantly moved by the consideration of desert (and in some (admittedly few) cases, this consideration will provide an ultima facie justification of punishment), whereas the consequentialist is not, at all, moved by it. For the retributivist the fact that punishment is deserved is always a reason for inflicting it – whether or not it is a conclusive reason is another matter. As it turns out, then, an insufficiently recognized difference between retributivists and their opponents is that the opponents are more restrictive when it comes to the factors which may play a role in the justification (or lack thereof) of punishment. Retributivists are more ecumenical than their opponents. I shall in due course further argue that such restrictive ethos renders non-retributivist positions rather impoverished.

There are cases, to be sure, in which a retributivist will think that the mere fact that someone deserves a certain punishment justifies her being punished (to that extent, etc.); but for the majority of cases, and, within the context of state punishment, the vast majority (or perhaps even the totality) of cases, the retributivist simply wishes to have the issue of whether or not a considered punishment is deserved be relevant to the question as to whether it should be inflicted. Some authors take this eminently ecumenical position to be barbaric.23

Consider the following thought experiment which Victor Tadros recently offered, as he answered objections against his attacks on retributivism.24 Hitler has ended up on an otherwise desert island, and there is no way he would ever be found, etc. Tadros wonders what would be better: that Hitler enjoys beautiful weather, or that he is constantly sneezing due to bad weather. Under these conditions, Tadros prefers it to be sunny – there is, in his view, nothing to be gained by Hitler’s suffering. Waxing Benthamite, Tadros suggests that those of us who, assuming these were really the only two options (and that no other considerations entered into play in this scenario), would rather see Hitler spending his life suffering (because of the bad weather, sneezes, etc.), are barbaric. In contrast, I consider consequentialist positions, like Tadros’, morally myopic – if not downright blind.25 Hitler’s evil deeds are, in this scenario, irrelevant for Tadros – Hitler should bask in the sun.

Some may find these sorts of thought experiment absurd and exasperating. But I think that they are less far-fetched than it may initially appear. Consider Ricardo Klement, who lived                                                                                                                          23 See, for example, Mark Vernon’s review of Leo Zaibert, Punishment and Retribution, op. cit., in The Times Literary Supplement (May 19 2006). 24 The text containing Tadros’ responses was distributed amongst the participants of a conference devoted to his book which took place on March 30th and 31st 2012 at Rutgers University, and is on file with the author. The thought experiment has now (Feb 7 2013) appeared online at the site of Law and Philosophy, where it figures prominently. 25 Tadros believes that recognizing the wrongness of our actions is intrinsically good, so assume that Hitler had either already recognized this before arriving in the island, or that he could never recognize it.

12    

an innocuous and law-abiding drab life in Argentina until he was seized by Israeli agents and brought to trial in Jerusalem. Klement was, of course, Adolf Eichmann, who, like many other Nazis, had changed his name after the war in order to escape justice. Metaphorically, Eichmann inhabited Tadros’ island. Imagine that Eichmann had succeeded in faking his death, had gone on living his law-abiding life in Argentina, and that he would have never been exposed as Eichmann. Under these circumstances, why not let him enjoy life, like Tadros’ Hitler in his island?26 For Tadros, and for consequentialists generally, if there is nothing additional to be gained by deserved suffering, then we should oppose it: “suffering is suffering is suffering” appears to be their monomaniacal motto – and whether or not that suffering is deserved plays no role in their worldview. Only retributivists would recommend punishing Klement/Eichmann as a matter of intrinsic goodness, of principle, as a matter of justice. In short, only retributivists would see impunity, as such, as a problem – a problem to which I will return.

It is not, of course, that I am sublimating suffering, or in any way failing to appreciate the obvious fact that, in principle (i.e., as a defeasible but nonetheless default position), we wish to avoid it. But I would like to suggest that the anti-retributivist attitude displayed by positions such as Tadros’ is the consequence of an exaggerated fear of punishment-related suffering. My main argument for the claim that the fear is exaggerated is based on the arbitrariness which typically surrounds its mobilization. Consider, for example, one of the characteristic, or even defining, tasks of philosophy at least since Socrates’ times: to say something about what it is to live a meaningful, worthwhile life. It goes without saying that such a worthwhile life need not be identical to a merely “happy” life. Happiness and pleasure are no doubt very nice, but still, most of us tend to agree with the view that “the unexamined life is not worth living” – and examining life is sometimes painful. Lest it be thought that by invoking Socrates’ dictum I am stacking the deck against the critics of retributivism (because he could be seen as a proto-retributivist), just think of that other famous remark by one of utilitarianism’s greatest champions: “it is better to be Socrates dissatisfied than a pig satisfied”. In other words, the appeal of the intuition that pleasure (including within it the absence or alleviation of pain, etc.) is not the only element that makes up a worthwhile life, is extraordinarily widespread.

I would like to argue that this widespread position is extremely closely related to a much less well-known position, and that this other position helps to answer why deserved punishment is intrinsically valuable. Just as there clearly is a difference between living a happy life and living a worthwhile life, there is a difference between living in a happy world and living in a worthwhile world. The dystopian world of the H.G. Wells’ Eloi, may be extremely happy, but it is not a worthwhile world.27 Retributivist intuitions (properly defined, delimited, etc.) seem to me to contribute to make the world a more worthwhile place. A world in which people get what they deserve is intrinsically better than a world in which people do not get what they deserve. In                                                                                                                          26 Assume, again, that Eichmann had recognized the wrongness of what he did before arriving in Argentina, or that he could never recognize it. 27 H.G. Wells, The Time Machine, New York: Norton (2008).

13    

theory, a world in which there are no wrongdoers would be better than a world in which there are wrongdoers: but as long as there is a world which contains wrongdoers, and as long as these wrongdoers deserve to suffer, then it is intrinsically better, in the sense of it being more worthwhile, respectable, dignified, beautiful, etc., that these wrongdoers suffer in proportion to what they deserve.

It is nonetheless possible to grant that there are things which, if they befell wrongdoers, would be intrinsically good, while still insisting that suffering is not one of those. Tadros, for example, aligned with the tradition of emphasizing punishment’s communicative dimension, does believe that if wrongdoers come to recognize the wrongness of their acts, that would be intrinsically good. Consider Hitler in the island again: imagine that while the island is deserted (except for him), and while he will never leave it, and no one will become aware of the island’s existence, Hitler may come to recognize the wrongness of his actions. Here Tadros would prefer that Hitler recognized such wrongness. Tadros’ problem, it turns out, is not with intrinsic value as such, but with the intrinsic value of deserved punishment.

Similarly, Antony Duff, whose influential work on the communicative dimension of punishment has clearly influenced Tadros, who has also correctly chosen to pay attention to the distinction between instrumental and intrinsic value when drawing the distinction between retributivism and consequentialism, and who is not an opponent of retributivism (certainly not to the extent that Tadros is), is still hesitant to claim that it is punishment’s suffering that is intrinsically good. Thus, while he tells us that consequentialists justify punishment in terms of “its contingent or instrumental contribution to an independently identifiable good”,28 he tells us that retributivists justify punishment in terms of “its intrinsic justice as a response to crime”.29 The asymmetry deserves underscoring: when describing consequentialism, Duff merely, and rightly, reports the relation between punishment and the “independently identifiable good” it is supposed to promote; but when describing retributivism, Duff no longer talks about just the relation between punishment and its goodness – he introduces (smuggles?) the talk of punishment being a “response”. Of course, Duff’s view of punishment as a response is part and parcel of his communicative approach to punishment, which I cannot address here.30 For my purposes here it suffices to emphasize that for Duff some punitive responses are intrinsically good. They are intrinsically good qua responses, and that may be a problem; but the bottom line is that, like Tadros, Duff is not opposed to intrinsic value as such.

So, even those who, like Tadros and Duff, admit that there is something intrinsically good about punishing people, flatly reject that suffering could be that intrinsic good. They are

                                                                                                                         28 Antony Duff, Punishment, Communication, and Community, Oxford: Oxford University Press (2001): 3. (Italics in the original.) 29 Antony Duff, Punishment, Communication… op. cit., 19. (Italics in the original.) 30 But see Leo Zaibert, “The Moralist Strikes Back”, New Criminal Law Review 14 (2011): 139-161.

14    

not alone in suggesting that suffering can never be itself intrinsically good. Thinkers of all stripes, it seems, are afraid of suffering – as a concept, that is. In his highly influential On What Matters Derek Parfit goes as far as to assert that

we can deserve many things, such as gratitude, praise and the kind of blame that is merely moral dispraise. But no one could ever deserve to suffer. For similar reasons, I believe, no one could ever [even!] deserve to be less happy.31

And immediately after presenting this extraordinary claim, Parfit adds:

When people treat us or others wrongly, we can justifiably be indignant. And we can have reasons to want these people to understand the wrongness of their acts, even thought that would make them feel very badly about what they have done.32

Parfit’s position, just like Tadros’ and Duff’s, is particularly odd in that it is so obviously the case that to “recognize”, to be “made to understand”, that we have done something bad is itself suffused with suffering: the famous pangs of conscience. Since Parfit, Tadros, and Duff admit that this recognition is itself painful – that is, suffering-inducing – their view presupposes a certain capacity for formidable metaphysical contortions: people could deserve experiences which are inextricably linked to suffering, even though they do not deserve the suffering. I find these authors’ confidence in their capacity to theoretically individuate and practically separate mental phenomena which, by their own lights, are so intimately connected, downright astonishing.

But even if mental phenomena could be properly individuated – and so both theoretically and experientially – a problem would remain for our authors. A corollary of their view is that if it were somehow possible to get wrongdoers to understand the wrongness of what they have done without thereby making them suffer – say, by the use of moral anesthetics – our authors will recommend their use. Why not? From their perspective, ex hypothesi, you would be getting all the intrinsic goodness that you could have gotten out of punishment with none of its potential drawbacks: a win-win situation.33

Unfortunately for our authors, things are, outside the ivory tower of academia, much more complicated. The ease with which our authors dispense with suffering (insofar as, in their

                                                                                                                         31 Derek Parfit, On What Matters. Oxford: Oxford University Press, Vol. 1, (2011): 272. For a much more nuanced view on desert, see Shelly Kagan, The Geometry of Desert, Oxford: Oxford University Press (2012): passim. 32 Derek Parfit, On What Matters, op. cit., 272. To be sure, Parfit’s rejection of retributivism is extraordinarily extreme: more extreme that Tadros’ and much more than Duff’s (who, in the final analysis, may be correct in seeing himself as a retributivist, of sorts). 33 For a very similar criticism of the potential endorsement of the use of moral anesthetics (in the context of Tadros’ views, see Douglas Husak, “Retributivism In Extremis”, Law and Philosophy 32 (2013): 3-31 and Leo Zaibert “The Instruments of”, op. cit..

15    

view, suffering is never intrinsically good) puts them in close proximity to actually endorsing impunity. And impunity can of course be seen as (intrinsically) bad, as a way of disrespecting both deeply-held moral values and, more importantly, the dignity of the victims of wrongdoing.34 Interestingly, the notion of impunity is a grossly under-researched topic within contemporary punishment theory. Impunity is much more commonly discussed amongst political theorists. Moreover, one of the most frequent contexts in which impunity is discussed is that of the burgeoning field of transitional justice, the study of nations which have recently transitioned to democracy (in Latin America, in Africa, in Eastern Europe, etc.), where the perceived need to ensure that perpetrators of atrocities do not enjoy impunity is seen as crucially constitutive of what it is to solidify the foundations of these incipient new democracies.

To experts in transitional justice it is patently obvious that emerging, incipient democracies need to reconcile the forward-looking needs of progress and of solidifying precarious institutions with the backward-looking concerns for the claims of justice. Chief among the latter is the need to avoid impunity. Sometimes impunity could be avoided by means different from punishment: say, by the work of truth and reconciliation commissions, by mechanisms of apologies and forgiveness, and so on. But the idea that the suffering of deserved punishment is, in itself, intrinsically bad would not sit well with either these experts nor with ordinary people.35

Our authors could have, I think, two responses available to my criticisms regarding their all-too-pious anti-suffering stance – neither one of which will work. They could say, firstly, that to make someone suffer, even to make someone suffer as a response to her wrongdoing is not to thereby punish her. Hitler sneezing in his otherwise desert island is not thereby being punished, insofar as he has no idea that the bad weather was sent his way as a response to all the bad things he did. If this is so, he would still be enjoying impunity – and so my desire to see him suffering (via the bad weather/sneezes) is revealed in its true barbarism. But it is the thought-experiment that forces this constraining choice upon me: either good weather or bad weather, period. Under those conditions, bad weather/sneezes, even if, technically speaking, not punishment, is the closest that we can get to punishment, and therefore it is the correct option in that case. (Moreover, for those who do not see punishment as necessarily a communicative enterprise, the                                                                                                                          34 See Jan-Willem van der Rijt, “Republican Dignity: The Importance of Taking Offence”, Law and Philosophy 28 (2009): 465-492. 35 See generally Ruti G. Teitel, Transitional Justice, Oxford: Oxford University Press (2002), and Melissa S. Williams, Rosematy Nagy, and John Elster (eds.) “Transitional Justice”, Nomos, New York: New York University Press. LI (2012). It is hard not to give in to the temptation that this peculiar division of labor responds to the parochial concerns of members of opulent societies, on the one hand, and of emerging democracies, on the other. For the former the pressing problem is their indeed grotesque criminal justice systems: avoiding impunity is not really too important for them. In contrast, for those trying to redefine and recreate nations in the wake of major atrocities and widespread human rights violations the need to avoid impunity, and even the appearance of impunity, is peremptory.

16    

problem is relatively minor (or non-existing). On some views one can punish privately, even secretly. So if I am somehow capable of manipulating the weather in order to make it rainy, and I do this in order to make Hitler suffer as a response to the awful things he did, I am punishing Hitler, whether or not he knows it.)36

The second possible response would be for our authors to insist that their concern with making wrongdoers understand the gravity of their offenses cannot be seen as in any way condoning impunity because the recognition would necessarily involve suffering, so that impunity is simply not one of their suggested alternatives. But if this is so, they will be giving the game away: for then deserved suffering will indeed be intrinsically good after all, insofar as it would be seen as either a proper part, or otherwise inseparable from the (also intrinsic) good of recognition. In other words, our authors can perhaps solve the potential problem of impunity, or of quasi-impunity, but only by contradicting themselves.

III. The Intrinsic Value Critique of State Punishment, or the Ecumenism of Retributivism

I have it on good authority – that is, on first-hand experience – that the claim that deserved suffering is intrinsically good is invariably met with huge resistance, since the claim conjures up images (initially, at least) of barbarism or sadism. On one such recent occasion, a colleague, overcoming the initial, almost reflex-like, resistance to my view that a world in which wrongdoers suffer (in proportion to their desert, etc.) is intrinsically better than one in which they do not, appeared to grant me, perhaps for the sake argument, that the view may after all be correct. But then he asked me whether a world in which people actually believe this claim (even stipulating it to be true) is also intrinsically better than a world in which they do not believe it.37

The hesitation before conceding that suffering as such is intrinsically good is no doubt reasonable. We are well-advised to be apprehensive of those who are trigger-happy about suffering, even if deserved. After all, the talk of deserved suffering can, often, mask ugly and destructive emotions, as Nietzsche, more compellingly than anyone else, has insisted.38 Sometimes those championing inflicting deserved suffering on others are just nasty, cruel people; other times they are deluded by a smug and self-serving sense of their own moral purity (or, in deeply unjust societies, by a naïve refusal to see the ways in which they too may bear some responsibility for the wrongdoings of others). And no doubt these ugly and destructive emotions and dispositions can of course in turn give rise to awful worlds.

                                                                                                                         36 See Leo Zaibert, Punishment and Retribution, op. cit., 38 ff. 37 With thanks to Owen Flanagan for posing this question. 38 Friedrich Nietzsche, A Genealogy of Morals, New York, Macmillan (1924), and Thus Spoke Zarathustra, Mineola: Dover (1999).

17    

But, as Michael Moore has also eloquently reminded us, the possibility that a philosophical position may be abused, or mobilized for all sorts of inappropriate purposes, is not a reason to reject it.39 The veiled appeal to paternalistic, esoteric morality contained in the suggestion that although it may be true that a world in which those deserving to suffer actually suffer would be better than one in which they did not, we should nonetheless prefer a world in which people did not believe that this is true, is highly revealing. The reason why some may not want some people to know that truth is fear of its possible abuse. But it is important to remember that these possible abuses may or may not come to happen: they cannot simply be stipulated.

What has been crucial for my purposes is to highlight the peculiar way in which the fear of suffering is manifested. For when philosophers overwhelmingly admit that Socrates’ life, or Gandhi’s life, or Martin Luther King’s life (or whoever is your moral hero), is more worthwhile, and therefore preferable, than the life of a satisfied pig or of a satisfied vulgar glutton, it is not because they assume that these extraordinary individuals suffered less than the gluttons. Quite the contrary; part of the greatness of some great figures involves the fact that they suffered, and part of the reason we admire them involves our appreciation of the way in which they dealt with the suffering. We tend to admire martyrs because they sacrifice, and suffer, for worthy causes: martyrdom without sacrifice and suffering is conceptually impossible. Less grandiose life-paths, say, like more or less humble decisions to examine life, to try to avoid self-delusion, to try to be honest with ourselves, are clearly fraught with potential suffering, and this potential hardly prevents us from pursuing such lives.

The philosophical fear of admitting that suffering could be intrinsically valuable is, then, a matter of cherry-picking: sometimes suffering is, albeit tacitly, admitted to be intrinsically good, other times it is not. And it appears that the fear manifests itself most consistently only when the suffering is associated with (state) punishment. In light of the undeniable excesses and injustices of contemporary criminal justice systems, it is hard not to actually celebrate that this fear exists, however arbitrary its genesis may be from a theoretical point of view. But that would be a pragmatic consideration, similar to the one that may lead us to entertain the possibility of endorsing paternalistic, esoteric morality. Even if useful in practice, the fear, or at least the capricious way in which it manifests itself, may be philosophically indefensible. It may after all also be useful for people to believe in the flying spaghetti monster, or to become theists because of Pascal’s wager.

I could conclude the paper right here: having made my case for the view that sometimes suffering can be intrinsically good, for the view that while thinking otherwise may be in this or that occasion useful, it is nonetheless mistaken, and for the view that this realization suggests a new map of the territory of punishment theory. These I would not see as small achievements. But in the remainder of this paper I further wish to suggest that the sort of reasons, the sort of sensibility, that allow some to give in to this fear may, in fact, turn out to be counterproductive                                                                                                                          39 See Michael Moore, Placing Blame, op. cit., 117 ff.

18    

vis-à-vis the very pragmatic, and very necessary, effort to expose the injustices of contemporary criminal justice systems.

When commenting on Tadros’ thought experiment of Hitler in the island, I appealed to the famous saying: “one man’s reductio is another man’s proof”: Tadros thinks that his example of Hitler on the island shows the barbarism of retributivism, whereas I think that it shows the moral myopia of utilitarianism. At this point, it may look as if we may have reached a stalemate of opposing intuitions. Some people, like myself, have the intuition that Hitler should suffer in the island, some people, like Tadros, Duff, and Parfit, have the intuition that Hitler should not just suffer. And that, it appears, is that.

Admittedly, I do not think that I can prove that my intuition is correct – I do not know what it would be like to try to convince someone else about the rightness of a bedrock intuition with which she disagreed. But there is another possible strategy. If I were to show that my intuition, much more than theirs, coheres with other intuitions which my opponents are very likely to accept, then I would have at least have invited a reflection on the merits of the intuition I reject. Moreover, if rejecting my intuition in fact deprives my opponents of compelling ways of protesting those very injustices in the criminal justice systems which so vex them, then abandoning their intuition would look like a really attractive option.

Part of the strategy has already been deployed, and I merely wish to register it once more: those who oppose the view that deserved suffering is intrinsically good, but who simultaneously recognize that some of the most admirable human lives have been not free from suffering, find themselves in an untenable position. Why is suffering abominable in one case but somehow respectable in the other? The instability of the position of the opponent to the view that deserved suffering is intrinsically good would appear to suggest that she should reconsider her intuition. (Of course, perhaps the opponent to this view also disagrees with the claims as to which lives are admirable. This would certainly be to buy conceptual consistency at a very high price: these authors would prefer to be pigs satisfied to Socrates dissatisfied. Surely I am not optimistic about my chances of convincing those opponents.)

The other part of the strategy is more indirect. Opponents of retributivism, for a variety of reasons, but above all because of their (arbitrarily manifested) fear of (punishment-related) suffering, end up limiting appeals to intrinsic value in general. As we saw, at times they operate as if their own positions were not predicated on the existence of some sort of intrinsic value. This hesitation of sorts in recognizing intrinsic value may place the opponents of retributivism in compromising situations.

Consider what Moore calls “surely one of the uglier spectacles of our times”: those repugnant “parties by fraternity boys outside the gates of prisons when an execution is taking

19    

place”.40 Moore’s use of the term “ugly” here is significant; it points in the direction of the intrinsic badness of these sorts of celebrations. Independently of whatever else is wrong with these parties, they are ugly, they are intrinsically wrong; and, moreover, this intrinsic wrongness will never be fully erased by any potential instrumental goodness these parties may generate. It is not a coincidence that the condemnation of this bit of horror at the hands of the fraternity boys comes from a retributivist. After all, retributivists are, as we have seen, more ecumenical in the way they distribute intrinsic value and disvalue.

Cases like these can become embarrassing for those (like, above all, Tadros and Parfit, but also like Duff) who share restrictive intuitions concerning the distribution of intrinsic value in the world. Imagine that the execution the frat boys are celebrating is of someone who is universally hated, such that no one will really object to the party (think of the midnight celebrations after the news of the capture and summary execution of Osama bin Laden, if you will). Imagine further that these sorts of parties, in effect, contribute mightily to deterrence (potential criminals would be deterred not only by the prospect of prison and death, but by the prospect of ending their lives in such an undignified way, as vulgar and misguided frat boys drink to their death). Imagine, that is, a case in which these parties may advance all the instrumental goods that the opponents of retributivism value without generating any significant instrumental badness. Unless intrinsic badness were recognized, there would be nothing for our authors to lament in such a case. Let us further stipulate that these frat boys simply cannot be made to understand the ugliness or wrongness of their actions. The critics of the intrinsic value of deserved suffering must perforce prefer that the frat boys, with something resembling absolute impunity, go on merrily enjoying their lives: for there will be nothing intrinsically valuable in their suffering.

Repugnant as they undoubtedly are, these frat boys’ parties are not the most serious problem with contemporary criminal justice systems. Grotesquely excessive punishments, the death penalty, torture, over-criminalization, discrimination, are all graver ills. And surely they can be criticized in many different ways. But those who deny the intrinsic value of deserved suffering have placed themselves in a disadvantageous position, for they seem ill-suited to mobilize an intrinsic value critique of these excesses. After all, part of what characterizes their position is a certain hesitation about admitting to the existence of intrinsic value – and to that extent they may simply have no access to that sort of criticism.

I have, however, admitted that this second part of the strategy is indirect, and those denying that deserved suffering is intrinsically valuable surely have a response. They could insist that they are not at all opposed to recognizing the intrinsic wrongness of, say, states that kill (via the death penalty) – what they oppose is the claim that suffering, even if deserved, could possibly be seen as intrinsically good, and that it is that specific claim that they oppose. And the answer would be correct, as far as it goes. The problem is that it does not go far enough. For their                                                                                                                          40 Michael Moore, Placing Blame, op. cit. 122.

20    

position would then invite a different sort of objection: if there are so many things that are intrinsically good and so many that are intrinsically bad, how come that it is only (or almost only) deserved suffering that can never be intrinsically good?

Notice that Parfit, for example, is not an enemy of the notion of desert tout court: he admits that all sorts of things can be deserved – it is just suffering that cannot possibly be deserved. In his own words:

We can deserve many things, such as gratitude, praise, and the kind of blame that is merely moral dispraise” – and he immediately adds: “[b]ut no one could ever deserve to suffer.41

This is why, I guess, Parfit endorses the following view:

though we believe that innocent people do not deserve to be punished, we also believe that guilty people do not deserve to be punished.42

It is hard to grasp what may be left of the difference between guilt and innocence, in the aftermath of this rather bizarre view. Not much (if anything at all), I am afraid: Parfit in effect suggests that we eliminate the institution of punishment and replace it with the practice of quarantine. The echoes of the good-old “humanitarian justification of punishment” – properly demolished by Michael Moore – are here unavoidable.43

Albeit indirectly, what this reveals is that the moral universe of those who deny that (deserved) suffering could ever be intrinsically good is an impoverished and simplistic one. Imagine that the opponents of retributivism believe that suffering is so bad, so intrinsically bad, that in order for us to ever be justified in inflicting punishment, we need to create some independent good that would outweigh its concomitant suffering (say, rehabilitation, or a happier, safer society, etc.). If that is really their view, then thinking that the initial, intrinsic wrongness of the deserved suffering is fully erased by its “justification” is just too naïve. This suggests that moral philosophy has by and large operated, with the help of trolley cars, with an overly simplistic view of moral mathematics, whereby the goodness and badness of states of affairs can typically be aggregated and disaggregated without remainders.44 If suffering is intrinsically bad, and yet we are somehow justified in causing it, in all likelihood a moral remainder would still obtain: not all its badness would disappear neatly. As Hans Welzel

                                                                                                                         41 Derek Parfit, On What Matters… op. cit., Vol. 1, 272. 42 Derek Parfit, On What Matters… op. cit., Vol. 2, 651. (Italics in the original.) 43 Michael Moore, Placing Blame, op. cit., 112 ff. 44 Parfit’s refusal to engage with this sort of complexity is captured nicely by his words when he dismisses G.E. Moore’s view that “it is in itself very bad to enjoy looking at ugly things”, by laconically referring to it as “mere aesthetic snobbey”. (Derek Parfit, On What Matters… op. cit. Vol 2, 569.

21    

famously put it: there is an important difference between killing a human being in self-defense, and killing a mosquito.45 This difference is not easily captured by any trolley problem.

Or consider Bob, a fraternity boy, whom we can imagine suffering in the case in which he was gratuitously beat up by a thug, and suffering identically (ex hypothesi) in a case that he was (again identically) beat up but by a passer-by who saw him celebrating an execution outside a prison, and who for that reason beat him up. To refuse to see the difference between these two sufferings strikes me as more than just a matter of different intuitions, but a reflection of an endorsement of rather flat-footed morality. For example, for those of us who think that there is intrinsic badness in the death penalty (a position for which I have not presented any arguments here), this badness would not altogether disappear if there were a case in which its infliction may be seen as justified. This badness would be a reason to proscribe it even if it turned out that it gave rise to instrumental goodness.

By (wrongly) targeting retributivism, its new critics have ended up making at least one important mistake. They have forgotten that it was precisely, as an alternative to the most unpalatable bits of utilitarianism that retributivism historically gained in plausibility and acceptance. And I am not thinking here primarily about the problem of victimization (infamously, utilitarians may endorse the sacrifice or the scapegoating of innocents for the good of the majority, thus evincing their lack of respect for the intrinsic worth and presumptive inviolability of human life).46 I am rather highlighting an impoverished moral phenomenology; by shunning retributivism ant its concern with intrinsic value, these new critics fail to see the meaningful, albeit not sufficiently explored, ways in which the retributivist perspective, rather than causing those repugnant aspects of our unjust criminal justice systems, in fact allows us to voice compelling condemnations of them.

                                                                                                                         45 See Hans Welzel, Das Neue Bild des Strafrechtsystems: Eine Einfuehrung in die Finale Handlungslehre, Goettingen: O. Schwartz (1961): 24. For an interesting history as to the transformation and translation of Welzel’s idea see Inigo Ortiz de Urbina Gimeno, “Old Wine in New Wineskins? Appraising Professor Bergelson’s Plea for Comparative Criminal Liability”, Pace Law Review 28 (2008): 815-845, at 834. For an interesting discussion of Welzel’s idea itself see Luis Chiesa, “When and Offense is not an Offense: Rethinking the Supreme Court’s Reasonable Doubt Jurisprudence”, Creighton Law Review¸ 44 (2011): 647-704, at 673 ff. 46 There is virtual unanimity on the fact that this is a problem for utilitarianism. One valiant but, in my opinion, unsuccessful attempt to argue that this is in fact not a problem for utilitarians is found in Guyora Binder and Nicholas Smith, “Framed: Utilitarianism and Punishment of the Innocent”, Rutgers Law Journal 32 (2001): 115-224.

22