Forward Thinking: Whether or How to Punish People

Forward Thinking: Whether or How to Punish People March 4, 2013

“Mistrust all in whom the impulse to punish is powerful…the hangman and the bloodhound look out of their faces. Mistrust all who talk much of their justice! Verily, their souls lack more than honey. And when they call themselves the good and the just, do not forget that they would be pharisees, if only they had–power.” ~ Nietzsche

Morality is a necessary, ineradicable, and irreplaceable tool for creating social trust, cooperation, reliability, order, stability, prosperity, unity, autonomy, fairness, justice, loyalty, care, love, and more vital goods. But moralities do not only rely on our most kindhearted, noble, pleasant, or merciful traits in order to function.

Whatever their positive results or their objectively defensible reasons to exist, they are rooted in dangerous and presumptuous power dynamics and sometimes involve people taking it upon themselves (individually or collectively) to inflict pain on others. (These traits led Nietzsche to suspect morality as hypocritical in the
extreme and to call himself an immoralist, partially as a matter of protest.)

So, for my latest forward thinking prompt I asked morally conscientious and judicious bloggers everywhere to tease out how and when or whether we might know it was ever appropriate to take it upon ourselves to be moral enforcers towards our friends, parents, peers, colleagues, or other adults in our lives. I was heartened to see how much they disliked the task. Relatively few even dared an answer and those who did all expressed an admirable humility.

Andrew Tripp went so far as to (in so many words) conscientiously object even to participating in the thought experiment of when it would be right to be each other’s “moral enforcers”:

In this case, I believe that norms have to be questioned more thoroughly than perhaps any aspect of society, for, to borrow from Adorno, we know via our own experiences that our society does not really operate under any sort of widely held ethical truths; thanks to the implementation of capitalistic-driven mass media, amongst plenty of other reasons, any sort of social contract that Americans ever ascribed to certainly does not exist anymore. Consumerism and other  material concerns have replaced any responsibility wider society might have felt towards their common man. With public ethics no longer having any objective core, we find ourselves in a state of nihilism.

Thanks to this, Adorno claims, claims about morality cannot be objective; only scientific statements, about fundamental empirical facts, can ever be given objective validity. Morality becomes prejudicial, making it impossible to make good decisions between opposing claims of ethical subjectivity. Thus, morality becomes a tool of power, useful only to make its espouser more attractive. And that influence created is backed not by ethical validity, but the material
assets of the person backing a moral vision.

Andrew explains that he wants to

indicate the danger of thinking, even in the abstract as it is laid out in the prompt, the idea that we can be so set in our morality that we then believe ourselves to have the authority to punish others for violating our own moral code. I cannot ever imagine myself being so certain of rights and wrongs that I would take it upon myself as a duty to discipline another because they did or said something that contradicted my views in some way. It seems like a position borne of ego, and not a terribly moral one in and of itself at that.

So, that’s my answer, and a question to all of you: could you ever be so certain of your morality, so affirmed, so unconcerned at the possible holes in your own reasoning, that you would take it upon yourself to become an ethical constable? I certainly don’t think that I could.

I agree with Andrew’s anxieties here. Being well versed in Nietzsche I am highly sensitized to the ways that moralities, even if they can attain to essential degrees of objectivity as I try to argue, are in practice systems of power and domination, and so entail a great deal of temptation towards abuse. They regularly allow people to indulge their cruelest, most self-righteous, judgmental, and pitiless sides with the clearest conscience. And so I can understand that someone inclined towards compassion and epistemic humility would be disinclined to set himself up as a “moral enforcer”.

But, nonetheless the question of when to punish people still cannot be avoided, as I spelled out in a piece on blaming people (which is a form of punishment) a while back:

And when it comes to blaming, we must be constructive–we must be aimed at the other’s good and not creating a fiction of an undetermined free will which is malignant and blamable as a deliberate purveyor of evil itself. We must recognize that people are usually far more ignorant than evil. We must appreciate that people do things under psychological and social circumstances different from our own which would make them more understandable psychologically. In this way we should not paint them as evil when blaming, but just focus on what it would be constructively best for them to feel and to do, going forward, if they can.

But then why blame at all? Because we have to. And I write about blaming not because I’m a judgmental asshole but because if we are going to do it–and given the necessary dynamics of social enforcement of necessary group cooperation we inevitably will–then I want us to have an understanding and practice of blaming that is as rational, fair, humane, and conducive
to actual human flourishing as possible. I want the opposite of absolutist, arbitrary, capricious, superstitious, judgmental, self-serving, hypocritical blaming and shaming.

The only way to do that is not to eschew all systematic parsing of moral rightness and wrongness as the stuff of moralists or religionists. Rather it means being even more careful and more precise in how we make such judgments so that when we inevitably slip back into everyday practices of blaming and shaming we do not unwittingly repeat their mistakes. If you want to dispense entirely with blaming and shaming instead and be consistent, then you’re going to have to explain what brand new mechanisms you will have for cultivating and maintaining social cooperation in others without those mechanisms that our psychologies have naturally bequeathed us. And you’ll have to explain how you will get creatures who are disposed psychologically and socially to such moral dispositions to so assiduously abandon them with you, even against their own natures.

Eventually whatever you come up with is going to look like a morality, i.e., a way of regulating, shaping, and changing behaviors of people. This is what I realized and why even though I hate moralism, I think the immoralist option is just untenable. Ironically, if you will, morality is a necessary evil. We will inevitably have norms and mechanisms of enforcing them.
With this will always come power relations that are open to great abuse by the careless, the selfish, the authoritarians, and the masochists. The best we can do is to counter them with constructive alternative moralities that both in practice and in theory are as rational, humane, pluralistic, consistent, fair, benevolent, pleasant, and conducive to human flourishing as we can. So that’s my constructive project.

Shira is also loathe to punish or encourage punishment too, but she recently came across research about not only how effective but how and essential altruistic punishment (punishments in which the punisher herself is willing to pay a cost just to enforce norm conformity in others) seems to be in getting people to cooperate for the greater good (even the punished individuals’ own). (The research is summarized excellently here for the curious and the skeptical.)

Shira responds to the evidence:

When I read that, whole regions of my worldview exploded. (For one thing, I owe a lot more respect to the theists who worry about what happens to morality in the absence of punishment.) A bit of web searching convinced me that this experiment was not only valid,
but it made sense. For instance, it turns out that

altruistic punishment activated the dorsal striatum, which
has been implicated in the processing of rewards that accrue as a
result of goal-directed actions. Moreover, subjects with stronger
activations in the dorsal striatum were willing to incur greater costs
in order to punish. Our findings support the hypothesis that people
derive satisfaction from punishing norm violations and that the
activation in the dorsal striatum reflects the anticipated
satisfaction from punishing defectors.

(The fact that there is a neurological underpinning convinces me that this behavior is part of what makes us human.)

So, it seems that innate morality, in the absence of punishment, is insufficient to gain us the fruits of non-zero-sum interaction between bare acquaintances. For that, we need rules and punishments for those who transgress the rules. So, then, how SHOULD we punish people for
moral failures? Should we, for instance, punish our friends even at the risk of losing their friendship? That would seem to be a form of altruistic punishment, aka, social glue.

For myself, when I contemplate a question like this I often think in terms of stance. That is, what stance — posture, facial expression, tensed and relaxed muscles, etc. — do I associate with the act of punishing my friends? Do I want to assume that stance? For me, punishing someone implies looming over him or her, with or without angry expression, clenched fists, etc. And no, that’s not a stance I want to take with friends… or with anyone, really. I prefer to approach every person with a relaxed, open stance that conveys interest and goodwill.

So I think my approach still has to be to reason with my friends about moral failings. (This assumes that no one is being hurt at the moment of confrontation — but even then, my concern in such a case has to be helping the victim rather than punishing the perpetrator.) I find that
my preferred actions are not different than they were before I learned this scientific information.

Perhaps I am thereby shirking my duty to enforce pro-social norms. But I suspect that the optimum number of punishers within a population will not be 100%. About all I can do is continue to think about this new information… oh, and be a bit more sympathetic to people who express a desire to punish people for their transgressions!

So how should we punish if it’s something we’re inevitably going to do and maybe even need to do? Kasey at Valprehension has a fantastic post with careful philosophical distinctions about how the standards any punishment must meet in order to be legitimized.

I think the thing that I need to establish up front is that none of us have the right to inflict “punishment” on most of the people in our lives. Punishment, as I see it, can only be meted out by someone who is in a position of legitimate authority over another person. And by ‘legitimate’, I generally mean consensual, either at the personal level, or at a communal/societal level. At the personal level, consensual authority would exist if I were to ask someone to help me police my behaviour in some way and we agreed in advance what consequences might occur if I fail in my desired behavioural change.

At the communal level, legitimate authority is established when people collectively agree on what behaviours cannot be tolerated, and on how they will be dealt with. A good example of would be a well-executed anti-harassment policy (wherein a person violating someone else’s
boundaries is removed from the environment in which the policy is enforced). Of course, not all communally or societally established authority is legitimate, but thankfully, I haven’t been asked to deal with the communal level here, so I’ll leave that discussion for another time.

So, the personal level, then… there are things that we can do, and generally should strive to do whenever we have the necessary energy (in escalating order):

1. Express your disapproval. If someone you know is doing something morally wrong, make it clear that you do not condone their behaviour, and wherever possible, explain why it is unacceptable. Sometimes people don’t realize the moral implications of their actions. Sometimes they are simply depending on not being called on it. Making it clear that you disapprove can be a powerful tool in changing a person’s behaviour.

2. Explicitly refuse to be complicit. If the person in question is trying to recruit your support (even passively) or if keeping quiet about the moral failure in question makes you feel morally culpable, make it clear that you will not be silent about their actions if you continue to be aware of them. Expressing disapproval while also remaining mum and allowing the moral wrong to continue sends mixed messages, and undermines your expressed disapproval.

3. Follow through. If the person continues to share the details of their transgressions, do not remain silent. Either warn the people who stand to be harmed by the wrong-doer, or bring the information to someone in a place of legitimate authority (i.e. if someone is stealing from their workplace, the managers have legitimate authority to punish them by firing them, and if someone is breaking a law, then the legal system has the (admittedly dubious in some cases) authority to deal with that).

4. Remove yourself from their life. In extreme cases, moral failing may be so great that you feel morally culpable simply for associating with that person. If your continued presence in their life is enabling their continued moral failing in any way (including simply by sending the message that their behaviour will not hurt them socially) that you don’t feel comfortable with, you are well within your rights to avoid associating with that person. for coworkers, this would involve a refusal to interact with them in any non-work-related capacity.

These tactics all work best with people with whom you have voluntary relationships (friends, family (you don’t choose your family, but generally once you’re an adult, you can choose whether you will associate with them), and the like). With coworkers, deciding whether or not it is worth employing these tactics involves weighing a lot of external factors, including your job security and your ability to continue to do your job effectively, and the like. And we don’t always have the strength or energy to stand up against every poor moral decision made by the people in our lives. But if you want to act, and you want to do so without yourself exercising illegitimate authority (which would itself be morally wrong), these are the kinds of things
you can do to discourage continued moral failings.

Click through to the whole article to see their rant about why she doesn’t think it’s fair to make their partner sleep on the couch just because they don’t want to sleep with him when they’re angry.

Rachel Marcy at Ripening Reason also wanted to focus away from punishing and instead centered in on the question of what the transgressed can do to focus on their own well-being. Very intriguingly and promisingly, for her punishing transgressors sounds to me more like an incidental necessity to the process of protecting the trangressed, rather than an end in itself or something focused directly on either the rehabilitation or retribution against the transgressor.

I’m limiting my response to non-criminal moral transgressions in adult interpersonal relationships, although I suppose much of this does still apply if someone you know commits a

I am disinclined to frame this topic in terms of punishment or moral enforcement. Rather, I would discuss the response to a transgression in terms of the safety and well-being of the transgressed. There are two basic options to achieve this, although they certainly aren’t
mutually exclusive:

1. The transgressed can withdraw from the transgressor, at least for a period of time.

2. The transgressed can (non-violently) confront the transgressor, in order to assert themselves and seek resolution, if that’s what they wish.

I don’t consider either of these options to be focused on punishment, but rather on the injured party establishing appropriate boundaries. I suppose it is a form of moral enforcement to say, “What you did was wrong, and it hurt me,” but I think the goal is to place value on the welfare of the person who has been hurt, and to hold the hurtful person to account for their actions. But the idea of punishment for it’s own sake, because of an “eye for an eye” mentality, makes me deeply uncomfortable.

In general I would argue for mediation that occurs at a pace led by the person who was hurt, but I recognize that it is sometimes more beneficial to simply cut ties. I also don’t think the injured party has an obligation to forgive. If it’s important to them to do so, that’s fine, but the idea of forgiveness is sometimes used to manipulate people who have been hurt. Sometimes, even framing someone’s response to injury in terms of punishment is an attempt at  manipulation. In response to the accusation, “Why are you punishing me? You’re so unforgiving,” someone can say, “You hurt me and I’m not willing to talk to you right now, for my own well-being.” While I don’t think the perpetrator should be allowed to go without scrutiny, I think it’s better to keep the focus on the welfare of the person who was affected. It prevents the transgressor from rounding up support, and without social support for their actions, they may actually change their behavior.

In some cases, particularly in professional relationships, it may also be highly beneficial to involve a third party.

She goes on to consider more kinds of particular scenarios in overview.

Finally, Matt Recla teases out some valuable distinctions that make him dubious of the effects of punishment outside of direct interpersonal agreements to be personally accountable to one another. He starts off discussing contexts where there are actually accountability agreements:

If, for example, you have an accountability partner of some sort, where the partnership is based on mutual motivation toward a common goal, then it would be incumbent on you to point out the moral failure of the partner when he or she fails to fulfill the aim in view of which the partnership was formed. A marriage would be a formal example, but most of the informal partnerships I can think of would be constructed around goals or aims that aren’t specifically moral, such as exercising regularly or staying away from particular foods. As a Christian teenager, I’m fairly certain I was involved in groups designed to be accountable for one’s sexual purity. In these types of situations in which the accountability was established beforehand, punishment would presumably take the form of whatever was decided beforehand as well.

The more complex situation, though, is one in which someone in your circle of social influence commits a moral transgression about which they had no explicit contract with you.

Matt relays the story of someone’s impotent attempts to penalize another by refusing to go to a wedding of which he did not morally approve and draws conclusions:

it seemed that the acquaintance was only temporarily hurt and then moved on while the punisher maintained a strong sense of indignation and self-righteousness that was compounded by the fact that his/her punishment was ineffective. The evidence is anecdotal, but it tells me that “punishing” a peer for a moral failure in unlikely to be effective if the goal is to chasten the individual’s behavior. If the intent is to distance oneself from a perceived moral impurity, which may be legitimate in certain cases, the “punishment” in the form of a withdrawal of relationship is not primarily intended as punishment but a cessation of association, which may or may not have that effect and should be a point of indifference
to the initiator anyway.

If a moral failure is regulated in some other social or legal sphere, such as a physical assault, then your personal punishment is unlikely to be significant in comparison. In addition, if you are aware of a moral failure that is also a legal transgression and decide to punish the person yourself rather than inform legal authority, it is unlikely that you would be sufficiently protected from blame, if the transgression was uncovered, by explaining that you punished the moral failure yourself.

In short, then, we live in a society in which there is some overlap between moral failure and institutional punishment, as there should be. It seems to me that if a moral failure is a legally punishable offense, the institutional punishment takes precedence over your personal punishment (although, as mentioned above, this might be augmented by termination of the relationship with the offender, the aim of which would primarily be to preserve oneself and not “punish” the other). If, as in my example above, the moral failure is not legally punishable, the scope of any punishment is going to be limited and will be of significant cost to the punisher as well. Assuming that the punisher and the offender are peers, I consequently see little ground or benefit for aiming at punishment.

Eventually he concludes,

Outside of institutional logic or the scenarios constructed above, I cannot see a situation in which it would be safe to assume that the moral failure for which the offender would be
punished is understood and shared by the offender. There is no objective reference against which to administer punishment. Common decency is too platitudinous to support personal punishment for moral failure. In my capacity solely as an individual, in relation to peers,
who am I to judge?

If you would like your thoughts on values to be profiled in this Forward Thinking series, consider writing a blog post in reply to Libby Anne’s new question, “What Do We Owe Our Parents?” Head over to Love, Joy, Feminism for details!

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