If you try to con someone out of their money by proposing a complex scheme to them, and then you make a mistake in your calculations and end up having to give them a lot of money, that’s poetic justice.
Poetic justice is always justice.
Instances of justice are always the intentional work of a person.
Some instances of poetic justice are not the intentional work of any human person.
So, there exists a non-human person.
And God is the best candidate.
Corruptionists hold that our souls survive death, but we are not our souls, and we do not survive death. All the corruptionists I know are Christians, and hold that eventually there comes a resurrection of the body, and then the soul regains its body, and our existence resumes.
A standard argument against Christian corruptionism is that on the view, it is our soul after death that suffers punishment or enjoys reward, while it is unjust that something that isn’t oneself should suffer punishment for one’s deeds.
A corruptionist response that I don’t ever remember seeing is this: only persons can be subject to injustice, and the soul is not a person, so no injustice happens to the disembodied soul.
While this does solve the problem of the injustice of the punishment, it does so at a cost. For if injustice cannot happen to a non-person, then by the same token, justice cannot be done to a non-person. Now it is only appropriate to punish x if the punishment is an instance of justice. If justice cannot be done to a non-person, then punishment cannot be appropriately imposed on a non-person.
This lead to a direct new version of the argument against Christian corruptionism: only persons can be appropriately punished, disembodied souls are not persons, and hence it is not appropriate to punish a disembodied soul. This version of the argument has an advantage over the standard argument, namely that it is irrelevant whether one’s sins belong to one’s soul or not.
How plausible this dialectics is depends on how plausible is the thesis that only persons can have justice or injustice done to them. I find the thesis plausible.
Remark 1: Of course, we talk of punishing and rewarding dogs and other non-human animals. But I think that is an analogical sense of the words "punish" and "reward."
Remark 2: Although noting that the soul is not a person solves the problem of injustice, it doesn't by itself resolve the problem of the imposition of suffering. Even though it is not unjust to kick one's dog when the dog did nothing wrong, it is wicked to do so.
Generally people think that if a trolley is heading for a bunch of people, it’s wrong to push an innocent bystander in front of the trolley to stop it before it kills the other people, with the innocent bystander dying from the impact.
But imagine that it is 99% likely that the bystander will survive the impact, but 100% certain that the five people further down the track would die. Perhaps the trolley is accelerating downhill, and currently it only has a 1% chance of lethality, but by the time it reaches the five people at the bottom of the hill, it has a 100% chance of lethality. Or perhaps the five people are more fragile, or the bystander is well-armored. For simplicity, let’s also suppose that the trolley cannot inflict any major injury other than death. At this point, it seems plausible that it is permissible to push the bystander in front of the trolley.
But now let’s suppose the situation is repeated over and over, with new people at the bottom of the track but the same unfortunate bystander. Eventually the bystander dies, and the situation stops (maybe that death is what convinces the railroad company to fix the brakes on their trolleys). We can expect about 500 people to be saved at this point. However, it seems that in the case where the bystander wasn’t going to survive the impact, it would have been wrong to push them even to save 500.
There are at least two non-consequentialist ways out of this puzzle.
It is wrong to push the bystander in front of the trolley in the original case where doing so is fatal. After all, one is not intending the bystander’s death, but only their absorption of kinetic energy. In my 2013 paper, I argued that this constitutes wrongful lethal endangerment when the bystander does not consent, even if it is not an intentional killing. But perhaps that judgment is wrong.
It is wrong to push the bystander to save five, but not wrong to push them to save five hundred. While this is a special case of threshold deontology, one can make this move without embracing threshold deontology. One can say that no matter how many are saved, it is wrong to intentionally kill the innocent bystander, but lethal endangerment becomes permissible once the number of people saved is high enough.
Initially, I also thought the following was an appealing solution: It matters whether it is the same bystander who is pushed in front of the trolley each time or a different one. Pushing the same bystander repeatedly unjustly imposes a likely-lethal burden on them, and that is wrong. But it would be permissible to push a different bystander each time onto the track, even though it is still almost certain that eventually a bystander will die. The problem with this solution is this. When the sad situation is repeated with different bystanders, by adopting the policy of pushing the bystander, we are basically setting up a lethal lottery for the bystanders—one of them will be killed. But if we can do that, then it seems we could set up a lethal lottery a different way: Choose a random bystander out of, say, 500, and then keep on pushing that bystander. (Remember that the way the story was set up, death is the only possible injury, so don’t think of that bystander as getting more and more bruised; they are unscathed until they die.) But that doesn’t seem any different from just pushing the same bystander without any lottery, because it is pretty much random which human being will end up being the bystander.
Mill thinks that:
An action is unjust if society has a utility-based reason to punish that actions of that type.
An action is wrong if there is utility-based reason not to peform that action.
Mill writes as if the unjust were a subset of the wrong. But it need not be. Suppose that powerful aliens have a weird religious view on which dyeing one’s hair green ought to be punished with a week in jail, and they announce that any country that refuses to enforce such a punishment as part of the criminal code will be completely annihilated. In that case, according to (1), dyeing one’s hair green is unjust. But it is not guaranteed to be wrong according to (2). The pleasure of having green hair could be greater than the unpleasantness of a week in jail, depending on details about the prison system and one’s aesthetic preferences.
The problem with (1), I think, is that utility-based reasons to punish actions of some type need have little to do with moral reasons, utilitarian or not, against actions of that type.
One of the well-known challenges in accounting for killing in a just war is the thought that even soldiers fighting on a side without justice think they have justice on their side, hence are subjectively innocent, and thus it seems wrong to kill them.
But I wonder if there isn’t an opposite problem. As is well-known, human beings have a very strong visceral opposition to killing. Even those who kill with justice on their side are apt to feel guilty, and it wouldn’t be surprising if often they not only feel guilty but judge themselves to have done wrong. Thus, it could well be that soldiers who kill on both sides of a war have a tendency to be subjectively guilty, even if one of the sides is waging a just war.
Or perhaps things work out this way: Soldiers who kill tend to be subjectively guilty unless they are waging a clearly just war. If so, then those who are on a side without justice are indeed apt to be subjectively guilty, since rarely does a side without justice appear manifestly just. And those who are on a side with justice are may very well also be subjectively guilty, unless the war is one of those where justice is manifest (as was the case for the Allies in World War II).
I doubt that things work out all that neatly.
In any case, the above considerations do show that a side with justice has very strong moral reason to make that justice as manifest as possible to the soldiers. And when that is not possible, those in charge should be persons of such evident integrity that it is easy to trust their judgment.
Buras and Cantrell have given a very clever ontological argument for the existence of God based on a desire for happiness. Here is a variant of their argument based on justice.
Ought implies (metaphysical) possibility.
There ought to be justice for humans.
Necessarily, if there is justice for humans, it is possible that there is a human who has happiness.
Necessarily, if there is a human who has happiness, God exists.
So, possibly God exists. (1-4 and S5)
So, God exists. (S5 and as God is essentially divine and necessarily exists.)
I want to expand a little on 3 and 4.
In any world where there is justice for humans, there is (a) a practical possibility of a human being innocent, and (b) a system that reliably rewards innocent humans with happiness. Items (a) and (b) taken together plausibly imply a practical, and hence metaphysical, possibility of happiness. That gives us (3).
Buras and Cantrell defend claim (4). My favorite defense of claim (4) is that human happiness, when we think through our deep desire for eternal life as well as the danger of boredom in eternal lfie, requires some sort of friendship with God.
It is always unjust to punish without the right kind of authority over those that one punishes.
Sometimes that authority may be given to us by them (as in the case of a University’s authority over adult students, or maybe even in the case of mutual authority in friendship) and sometimes it may come from some other relationship (as in the case of the state’s authority over us). But in any case, such authority is sparse. The number of entities and persons that have this sort of authority over us is several orders of magnitude smaller than the number of people in society.
This means that typically when we learn that someone is behaving badly, we do not have the authority to punish them. I wonder what this does or does not entail.
Clearly, it does not mean that we are not permitted to criticize them. Criticism as such is not punishment, but the offering of evaluative information. We do not need any authority to state a truth to a random person (though there may be constraints of manners, confidentiality, etc.), including an evaluative truth. But what if that truth is foreseen to hurt? If it is merely foreseen but not intended to hurt, this is still not punishment (it’s more like a Double Effect case). But what if it is also intended to hurt?
Well, not every imposition of pain is a punishment. Nor does every imposition of pain require authority. Suppose I see that you are asleep a hundred meters from me, and I see a deadly snake, for whose bite there is no cure, approaching you. I pull out an air rifle and shoot you in the leg, intending to cause you pain that wakes you up and allows you to escape the snake. Likewise, it could be permissible to offer intentionally hurtful criticism in order to change someone’s behavior without any need for authority (though it may not be often advisable).
But there is a difference between imposing a hurt and doing so punitively. In the air rifle case, the imposition of pain is not punitive. But in the case of criticism, it is psychologically very easy to veer from imposing the criticism for the sake of reformation to a retributive intention. And to impose pain retributively—even in part, and even by truthful words—without proper authority is a violation of justice.
There are two interesting corollaries of the above considerations.
First, we get an apparently new argument against purely reformatory views of punishment. For it seems that the imposition of pain through accurate criticism in order to reform someone’s behavior would count as punishment on a purely reformatory view, and hence would have to require proper authority (unless we deny the thesis I started with, that punishment without authority is unjust).
Second, we get an interesting asymmetry between punishment and reward that I never noticed before. There is nothing unjust about rewarding someone whom we have no authority over when they have done a good thing (though in particular cases it could violate manners, be paternalistic, etc.) In particular, there need be nothing wrong with what one might call retributive praise even in the absence of authority: praise intended to give a pleasure to the person praised as a reward for their good deeds. But for punishment, things are different. This is no surprise, because in general harsh treatment is harder to justify than pleasant treatment.
We have the intuition that when someone has worked uprightly and hard for something good and thereby gained it, they deserve their possession of it. What does that mean?
If Alice ran 100 meters faster than her opponents at the Olympics, she deserves a gold medal. In this case, it is clear what is meant by that: the organizers of the Olympics owe her a gold medal in just recognition of her achievement. Thus, Alice’s desert appears appears to be appropriately analyzable partly in terms of normative properties had by persons other than Alice. In Alice’s case, these properties are obligations of justice, but they could simply be reasons of justice. Thus, if someone has done something heroic and they receive a medal, the people giving the medal typically are not obligated to give it, but they do have reasons of justice to do so.
But there are cases that fit the opening intuition where it is harder to identify the other persons with the relevant normative properties. Suppose Bob spends his life pursuing virtue, and gains the rewards of a peaceful conscience and a gentle attitude to the failings of others. Like Alice’s gold medal, Bob’s rewards are deserved. But if we understand desert as in Alice’s case, as partly analyzable in terms of normative properties had by others, now we have a problem: Who is it that has reasons of justice to bestow these rewards on Bob?
We can try to analyze Bob’s desert by saying that we all have reasons of justice not to deprive him of these rewards. But that doesn’t seem quite right, especially in the case of the gentle attitude to the failings of others. For while some people gain that attitude through hard work, others have always had it. Those who have always had it do not deserve it, but it would still be unjust to deprive them of it.
The theist has a potential answer to the question: God had reasons of justice to bestow on Bob the rewards of virtue. Thus, while Alice deserved her gold medal from the Olympic committee and Carla (whom I have not described but you can fill in the story) deserved her Medal of Honor from the Government, Bob deserved his quiet conscience and “philosophical” outlook from God.
This solution, however, may sound wrong to many Christians, especially but not only Protestants. There seems to be a deep truth to Leszek Kolakowski’s book title God Owes Us Nothing. But recall that desert can also be partly grounded in non-obligating reasons of justice. One can hold that God owes us nothing but nonetheless think that when God bestowed on Bob the rewards of virtue (say, by designing and sustaining the world in such a way that often these rewards came to those who strove for virtue), God was doing so in response to non-obligating reasons of justice.
Objection: Let’s go back to Alice. Suppose that moments after she ran the race, a terrorist assassinated everyone on the Olympic Committee. It still seems right to say that Alice deserved a gold medal for her run, but no one had the correlate reason of justice to bestow it. Not even God, since it just doesn’t seem right to say that God has reasons of justice to ensure Olympic medals.
Response: Maybe. I am not sure. But think about the “Not even God” sentence in the objection. I think the intuition behind the “Not even God” undercuts the case. The reason why not even God had reasons of justice to ensure the medal was that Alice deserved a medal not from God but from the Olympic Committee. And this shows that her desert is grounded in the Olympic Committee, if only in a hypothetical way: Were they to continue existing, they would have reasons of justice to bestow on her the medal.
This suggests a different response that an atheist could give in the case of Bob: When we say that Bob deserves the rewards of virtue, maybe we mean hypothetically that if God existed, God would have reasons of justice to grant them. This does not strike me as a plausible analysis. If God doesn’t exist, the existence of God is a far-fetched and fantastical hypothesis. It is implausible that Bob’s ordinary case of desert be partly grounded in hypothetical obligations of a non-existent fantastical being. On the other hand, it is not crazy to think that Alice’s desert, in the exceptional case of the Olympic Committee being assassinated, be partly grounded in hypothetical obligations of a committee that had its existence suddenly cut short.
Bob is deciding whom to hire for a job where race is clearly irrelevant to job performance. There are two clear front-runners. Bob hires the white front-runner because that candidate is white.
Bob has done something very wrong. Why was it wrong? A naive thought is that what he did wrong was to take into account something irrelevant to job performance while deciding whom to hire. But that can’t be right. For suppose that all the job-performance related facts were on par as far as Bob could tell. And then suppose that Alice when dealing with a similar case just said to herself “Heads, A, and tails, B”, tossed a coin, got tails, and hired candidate B. Alice didn’t do anything wrong. But Alice also made a decision on the basis of something irrelevant to job performance, namely whether the prior heads/tails assignment to a candidate matched the outcome of the coin toss.
In terms of deciding on irrelevancies, the paradigm of a fair tie-breaking procedure—a coin flip—and the paradigm of an unfair tie-breaking procedure—a racist decision—look very similar.
Here is a standard thing to say about this (cf. Scanlon): When the job-performance related facts are tied, and we still have to choose, we just have to choose on the basis of something not related to job performance. But that something had better not be something that forms the basis for large-scale patterns of dominance in society. Both Alice’s and Bob’s procedures are based on something not related to job performance, but Bob’s procedure is an instance of a large-scale social pattern of dominance.
I want to propose an account of why Bob did wrong and Alice did not that seems to me to differ slightly from the standard story (or maybe it just is a version of it). To that end, consider a third story. Carl runs a graduate program where he has to make lots of hard choices about current students, e.g., about travel-funding, stipend-renewal, lab and office allocation, etc., and these choices often involve ties on the usual academic metrics. (This is not a description of the Baylor philosophy program: we have lots of funding, and rarely if ever had to break ties regarding funding.) Carl is lazy and has decided to simplify things for himself by saving the number of coin tosses he has to make. Instead, whenever a student is admitted, Carl chooses a random number between one and a thousand and assigns that number to the student, re-rolling the random number generator if that number matches the number of a student already in the program. Thereafter, whenever a tie is to be broken, Carl always breaks the tie in favor of the student with the higher pre-assigned number.
Carl’s tie-breaking procedure is like Alice’s in terms of randomness and lack of alignment with larger social patterns of discrimination. But it’s still a terrible procedure. It’s terrible, because it distributes benefits and burdens in a seriously unequal way: if you got randomly assigned a low number at admission, you are stuck with it and keep on missing out on goodies that people assigned a high number got.
One can now explain what goes wrong in Bob’s procedure as something rather like what went wrong in Carl’s procedure: given structural racism, the minority candidate, call him Dave, passed over by Bob has tended to have been on the negative side of many other decisions (some of them perhaps being racist tie-breaking decisions, and many of them being even more unjust than that). Bob’s procedure has contributed to Dave having a life of tending to get the short end of the stick, just as Carl’s procedure has led a number of students having a graduate career with a tendency to getting the short end of the stick. And a tendency to getting the short of the end of the stick is something we should (at least typically) not contribute to.
This is close to the standard account about Bob’s racism. It likewise involves the large-scale patterns of dominance in society. But it seems to me also importantly different: The large-scale patterns of dominance in society are relevant to Bob’s action insofar as they make it likely that Dave has been on the unfavorable side of too many decisions. In the graduate program case, there may be no larger social patterns that match the ones within the program (or at least not pre-existing ones), and even within the program there need not be any significant interpersonal patterns of dominance between the persons assigned high numbers and low numbers, especially if the initial numerical assignments and the tie-breaking procedure are kept secret from the students, who just say things like, “My luck is terrible!” (This is going to be most likely in a program where students are oblivious to their social environment due to a focus on their individual research.)
In the alternate account, the focus is on the individual rather than the group, and the larger social facts are relevant precisely as they have impacted the individual. But this may seem to miss out on a common dimension of invidious discrimination. If I am a member of a group and someone else in the group is unfairly discriminated against, then that is apt to harm me in two ways: first, because I am apt to have a special concern for other members of the group (either because they are members of the group, or because persons more closely related to me tend to be members of the group), and harm to someone I have a special concern for is harm to me, and, second, because seeing someone like me get harmed scares me.
But I think this fits with my individualistic story by just multiplying the number of times that Dave gets the short end of the stick: sometimes he gets the short end of the stick directly and sometimes he gets it indirectly by having someone else in his group get it.
At the same time, I have to say that this is material I know next to nothing about. Take it with a grain of salt.
According to Rawlsians, it is wrong to make decisions in the public arena based on controversial comprehensive doctrines.
Here is a counterexample. We meet up with aliens who are incredibly truthful: not only have we never found one to lie, but we have never found one to even accidentally say the false. The aliens inform us that they have figured out whether controversial comprehensive doctrine D is true. We have very good reason to believe the aliens. The aliens inform us of a fanatical plan: Each state has two weeks to submit a statement to the aliens as to whether D is true. Those states that either fail to submit such a statement or who get the answer wrong will be completely destroyed. And then the aliens will leave.
It is obvious that the right thing for the state to do is to do its best to figure out whether D is true, and then on the basis of its best determination make the statement to the aliens. It is clearly wrong to refuse to answer, and it is also clearly wrong to simply guess without basing oneself on one’s best determination of the truth value of the comprehensive doctrine. It is clearly the right thing in this case to make a public decision on the basis of a controversial comprehensive doctrine.
Of course, this is a very special case: a case where what rides on the decision is so important that it trumps most other considerations. But we can lower the amount that rides on the decision and still keep the intuition. Suppose that instead the aliens promise to kill one per thousand people at random if we get the answer wrong. That should, I think, be enough to overcome any qualms we may have about using controversial comprehensive doctrines in public policy. But now there are real-world issues riding on controversial comprehensive doctrines where what is at stake is of a similar or greater magnitude. Abortion is a paradigm case.
There is a lot of discussion about whether it is permissible to use reasons based on controversial comprehensive doctrines, such as religious reasons, in the public arena. But at least such reasons can be formulated in terms most people understand.
A different sort of challenge seems to be posed by reasons that the agent is unable to share, reasons such as hunches, feelings, etc. Not infrequently, we just see, or at least think we see, that something is the right decision, but cannot say why. And while on the one hand such reasons cannot very satisfactorily enter into discussion, on the other hand without them our public knowledge of what we should do will be deeply impoverished, and our public deliberation will be biased in favor of the opinions of verbally skilled elites. And it seems plausible that it is more important to get to the truth than to have a satisfactory discussion.
Of course, one could say that the fact that one has a hunch that something is to be done is itself a shareable, discussable reason, and hence acceptable in the public sphere. But now, I think, the notion of what is a shareable, discussable reason becomes largely trivialized.
Alice is a supervillain and Bob is a mad scientist. Alice wants Bob’s device to destroy the world. Bob makes Alice a deal: gain the virtue of justice and get the device. Alice isn’t smart enough to realize that once she gains the virtue of justice, she won’t want to use the device. She reads the best in ancient and modern wisdom, works hard, and gains the full virtue of justice, all in order to destroy the world.
Let’s suppose that when you have the full virtue of justice, you have to act from justice (at least in actions where justice is relevant). At some point Alice lost the motivation to destroy the world. Let’s suppose that as it happened, she lost that motivation at the same moment at which she gained full justice.
Alice now possesses justice, but it seems she is not praiseworthy for being just. All her just actions are ultimately explained by her former desire to destroy the world. They are not to her credit.
Now, here is what I think is rather odd about this story: Precisely by becoming fully just, Alice has lost all possibility for getting moral credit for acting justly. She is now locked into a non-praiseworthy justice.
I don’t know how this story bears on other philosophical questions or what interesting conclusions to draw from it.
In practice, I suspect, it would be unlikely that Alice would lose the motivation to destroy the world just as she gained full justice. There would likely be an intermediate time when she is no longer motivated to destroy the world, but has incomplete justice and hence is capable of choosing between virtue and vice, and hence can praiseworthily gain full justice.
There is an old debate on whether one can exhibit courage when acting in an unjust cause. I used to think that one can. But now that seems obviously wrong, given that courage is a mean between defect and excess of daring:
Needlessly braving danger is not courageous.
Unjust actions are needless.
So, unjustly braving danger is not courageous.
Perhaps one might object to 2, on the grounds that unjust actions might be needed for some good. But one does need to do them, since no one needs to achieve the good at the expense of unjustice.
One can also vary the above argument into an a fortiori one: If braving danger pointlessly is not courageous, then a fortiori braving danger for the sake of an unjust goal is not courageous.
All that said suggests, however, that the traditional term “foolhardiness” for excess of daring isn’t quite right. For we wouldn’t call every unjust person who acts daringly for the unjust end “foolhardy”. I guess the person who acts daringly for an unjust end is worse than foolhardy: the foolhardy person’s end is good but not sufficient to justify braving the danger, while when the end is unjust, it is not only not sufficient to justify braving the danger, but it is sufficient to justify not braving the danger.
There is no strict duty to reward a person who has done a supererogatory thing. Otherwise, engaging in generosity would be a way of imposing a duty on others.
But punishment is the flip side of reward. Hence, there is no strict duty to punish a person who has done a wrong.
Of course, supererogatory action makes a reward fitting, and likewise wrong action makes a punishment fitting. But in neither case is the retributive response strictly required by justice.
John Stuart Mill famously wrote:
We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow-creatures; if not by opinion, by the reproaches of his own conscience.
I have two concerns about the middle item, punishment “by the opinion of his fellow-creatures”: (1) standing and (2) due process.
1. Standing
Punishment requires the right kind of standing on the part of the punisher. Unless in some way you are under my authority or perhaps I am an aggrieved party, I do not have the standing to punish you. There are two ways of taking this worry.
First, one might take it that without standing it is literally impossible for me to punish you. It is certainly possible for me to treat you harshly, and my harshness can be a reaction to your wrongdoing, but perhaps it won’t be a punishment.
I am not completely sure about this, though. For suppose you have done something wrong and a vigilante without standing has imposed harsh treatment on you in reaction to this, a harsh treatment that would have counted as maxing out retribution if the vigilante had standing, and then you fall into the hands of an authority with the standing to punish. A case can be made that at that point it is inappropriate for the authority to impose further harsh treatment, and that the best explanation is that the vigilante has already punished you. But perhaps this case isn’t right. Our law does not, I think, work this way. A judge might take into account what you suffered at the hands of the vigilante and reduce your sentence, but it does not seem that the judge would be unjust in still giving you the full sentence that the law calls for (and the vigilante then being punished if caught, too). Moreover, the intuition that “you’ve suffered enough already” may apply even in cases where you something bad happens to you as a non-punitive consequence of a crime, say if you’re a drunk driver and you crash into a wall causing yourself to be paralyzed from the neck down. So on the whole, I am dubious that it is possible to punish without standing.
The second worry about standing is that without standing, I have no right to impose the harsh treatment on you (barring special circumstances, such as your giving me permission). This is clear if in fact the previous worry about standing applies and the harsh treatment would not count as punishment—for in that case, the harsh treatment is unjustly applied, since the one relevant justification for it would be that it is a punishment, and it’s not. But even if the harsh treatment were to count as punishment, without standing an injustice has happened.
But perhaps third-parties do in fact have standing to punish. I can see two stories being told to defend this standing.
First, no man is an island, so if you wrong one person, perhaps you wrong all of society, and so third-parties have standing as aggrieved parties. I am doubtful, however, whether aggrieved parties as such do have standing to punish. My children do not have the right to punish each other for misdeeds committed against each other. Moreover, it seems implausible that there be a disjunctive story about the standing to punish, so that both authorities and aggrieved parties have standing. One might try to say that only aggrieved parties have standing to punish, and then say that authorities punish as representatives of the aggrieved community, but that seems mistaken. For authorities can also legitimately punish wrongs done against those that are not members of the aggrieved community. Parents can legitimately punish children for things that the children did against members of other families. (It is tempting to say that this is a punishment for the violation of family rules, which damages the peace of the family, but that approach does not seem pedagogically right.)
Moreover, in a Christian context, it is very dubious whether aggrieved parties have any right to punish on account of their grievance: to impose punishment on account of one’s own grievance seems to be the kind of behavior that the duty of forgiveness rules out and that is also ruled out by Romans 12:19. So a justification of punishment in terms of a standing that derives from being aggrieved is not available to Christians.
Second, perhaps random third-parties count as deputed by society to impose punishment by adverse opinion, even though they are not deputed to impose punishment by violent means. If so, then they have standing to punish on the grounds of deputed authority rather than ont he grounds of being aggrieved. This fits much better with the anti-vengeance motif of the New Testament. Perhaps some evidence of such a deputation is that truth is a defense in defamation lawsuits.
I think an implicit deputation model is the best story about punishment by adverse third-party opinion. But I am still sceptical. One reason is this. Punishment by third-party opinion can be at least as harsh on the wrongdoer as a fine or even a moderate term of imprisonment. Yet we do not think courts have a duty to routinely significantly reduce punishments for significant crimes on the grounds that the person has already been punished by public opinion, or to increase punishments on the grounds that public opinion has been silent. Thus, adverse opinion does not seem to be a properly deputed part of the punishment.
2. Due process
Punishment requires procedural justice. But public opinion rarely follows best practices there. Even though punishments through adverse opinion can be as harsh on the accused as criminal penalties, the thorough examination of evidence, with a presentation of both sides by able legal representation and a factual examination by independent peers following a “beyond reasonable doubt” standard is rarely present in the case of punishment by public opinion. And even if there are no reasonable grounds for doubt about the wrongs committed, rarely is there a serious examination of evidence about mens rea or sanity.
About the only time that public opinion is able to follow our best practices is if the public opinion comes after a proper criminal trial and is entirely conditioned on its outcome. But that is rare, and anyway isn’t the case that Mill is thinking about.
Final remarks
The above does not mean, however, that public opinion needs to be silent on wrongs done. For there are other reasons to criticize someone’s conduct besides punishment, such as:
protecting vulnerable others
leading the perpetrator to change of behavior and/or heart
inspiring others to resist injustice.
But if I am right, it is crucial for the sake of justice that the adverse public opinion be motivated by such goods as these rather than by retribution. And there is always the danger of self-deceit and the need for prudent choice of means (public denunciation seems less likely to lead to positive change than private admonition).
It is galling to be punished or even criticized unjustly. But it can also be galling to be rewarded or even praised unjustly. Over the past two years, two of my graduate students have received grants. They did all the work. But because of university policy, I had to be listed as the PI on the grants. And I’ve been getting multiple letters from the administration congratulating me on the grants. That’s galling.
I think God would be similarly galled if he were thanked for something he didn’t do, unless he did something just as good or better. And so God would have strong reason to act to ensure that such thanks would not be forthcoming.
Thus, we have reason to think that whatever people sincerely thank God for, God has either done that—or something at least as good—for them. In particular, we have reason to think that God has become incarnate and died for our sins or has done something at least as good.
Notice an interesting way that this argument makes available something like an implicit faith to non-Christian theists. For non-Christian theists also have reason to believe, on the strength of this argument, that God did something at least as good as what Christianity says he did, and to thank God for doing this. If they then thank God for "doing something at least this good", they would be implicitly thanking God for the Incarnation and Redemption, since in fact that is something God did that was "at least this good".
You cannot forgive someone who hasn’t wronged you, and it should follow that likewise you cannot take vengeance on someone who hasn’t wronged you.
But certainly there are actions that look very much like vengeance but that aren’t perpetrated by the victim. The treatment that pedophiles are said to receive in prison is a particularly awful example, but there are also various forms of mob justice on the Internet.
This kind of third party “vengeance” seems worse than ordinary vengeance. Ordinary vengeance is a failure to fulfill the Christian duty of forgiveness, sometimes a violation of procedural justice and sometimes a violation of retributive justice by being disproportionate to the offense. Third party vengeance, however, adds to the wrong-making features of ordinary vengeance one more ingredient: that one lacks the standing for vengeance.
At the same time, third party vengeance looks more like justice than ordinary vengeance due to the unselfish disinterestedness. Moreover, because there is no place for a non-aggrieved party to forgive, third party vengeance is not opposed to forgiveness in the way that ordinary vengeance is. These features only make third party vengeance look better, but in fact make it be worse. The reason for the disinterestedness is that one does not even have any standing for vengeance while the reason for the lack of opposition to forgiveness is that the paradigmatic attitudes that forgiveness forgoes shouldn’t be there in the first place.
It seems to me that just as forgiveness is opposed to ordinary vengeance, there needs to be something opposed to third party vengeance. But this something will be different from forgiveness. While true forgiveness is probably only a duty in the context of Christianity and is otherwise a supererogatory renunciation of certain (hard to specify) attitudes, “third party forgiveness” is something that is demanded by the fact that one lacks the standing for these attitudes. This “third party forgiveness” is akin to one’s duty to “forgive” those who one realizes not to be guilty (whether through lack of culpability or through simply not having done the deed). Thus, failure of third party forgiveness is more serious—even though it may feel more righteous!—than failure of ordinary forgiveness.
A complicating factor, however, is that there is a grain of truth in mob justice: No man is an island. A harm to one member of society is a harm to each. Nonetheless, typical cases of mob justice involve insufficient standing given the degree of harm. Yes, a pedophile by gravely harming a stranger derivatively harms me. But while the grave harm to the child deserves grave penalties, the derivative harm to a stranger is much less, and calls for very little in the way of penalty. (Quick but perhaps not very good argument: We don’t want to say that criminals in Tokyo deserve much, much greater punishments than those in Lichtenstein to account for the Tokyo community having over 200 times more derivative third party victims.)
Slavery is the ownership of one person by another. Since a person no more owns another than a thief owns the purloined goods, there has never been any slavery. But of course there have been institutions thought to be slavery: institutions in which a person was thought to be the property of another. These were not institutions of slavery in the above strict sense but forms of unjust imprisonment, kidnapping, etc.
This seems to be merely a point about words, and a mistaken one at that. “Of course, Alexander II ended serfdom in Russia while Lincoln ended slavery in the US. Words mean what they are used to mean, and to dispute historical claims like these is to be like the fusty grammarian who claims that ‘It’s me’ is bad English.”
I agree that the question of words is unimportant. But here is what is important. Institutions are defined in large part by their norms. It is a defining feature of the norms of slavery (and, with some differences, of serfdom) that one person has property-style rights over another who has onerous obligations corresponding to these rights. But in fact, nobody has such rights over another, and the supposed obligations do not obtain. The institution that the “masters” saw themselves as a part of did not in fact exist, because the rights and obligations that they took to be integral to the institution did not, and could not, in fact exist.
We can use the term “slavery” (and cognates in other languages) for that non-existent institution, just as we use the term “phlogiston” for the substance that chemists mistakenly believed in before oxygen was discovered.
But we could also use distinguish and use two terms. Maybe slaveryh is the historical form of social organization that actually (and deplorably) existed and slaveryn is the normative institution that the mastersh (and maybe some of the slavesh, as well) incorrectly thought to exist and thought to be coextensive with slaveryh.
Again, the words don’t matter, but it matters that there was a morally condemnable attempt to create a certain social institution which attempt failed because the norms that were attempted to be instituted were incapable of institution.
This is a pattern we find in many other cases. There is no such thing as a forced marriage, since the norms of love and sexuality that define marriage do not come into existence apart from the free consent of the parties. But of course over the course of history there have been morally condemnable attempts to force people—especially women—into the institution of marriage. These attempts always failed, and what the victims were forced into was a different institution, one subjecting them to such injustices as kidnapping, unjust imprisonment, rape, etc.
Thomas Aquinas, similarly, holds that there are no unjust laws. Of course, legislators may attempt to enact laws that would be unjust (or they may simply be exercising power and not even trying to legislate). But when they do so, they fail to enact laws. What they enact are mere demands masquarading as laws (philosophical anarchists think all “laws” are like that). Again, the question of words is unimportant, but what is important is the pattern: the legislator is deplorably attempting to create a social institution—a law—and failing to do so, but instead creating another institution.
The particular cases of this pattern are interesting, and so is the pattern itself. A central part of the pattern is an attempt to create an institution (or an instance of an institution) that misfires, and instead another institution is created that is widely but mistakenly thought to be the one that was the target of the attempt. But the cases of slavery, forced marriage and unjust laws also share another feature that not all the cases of misfiring do. For instance, suppose due to an honest mistake in the counting of ballots, there is a mistake as to who the mayor of a town is. The false mayor then attempts to legislate something quite just. The attempt fails, because the false mayor lacks the standing to legislate. But there need be nothing morally deplorable here, as there is in the slavery, forced marriage and unjust law cases.
Moreover, the three cases I started with are not just morally deplorable, but there seems to be an important connection between moral evil and performative misfire. Slaveryh is morally horrific, but slaveryn would be even worse, as the slavesn would be under genuine obligations to do the enforced labor required of them and not to escape. This would, as it were, make morality itself complicit with the master, and the properly formed conscience of the slave into a whip in the master’s hand. And the same holds in the other two cases: morality itself would be a tool of oppression.
There are, alas, times when morality is a tool of oppression. The duties that exist between relatives are frequently exploited by repressive regimes as a means of social control: If you are an Uyghur or Tibetan defecting to a free country and speaking out against the Chinese regime, your relatives back home will suffer, and this restricts your activity because of the duties you have to your relatives. But the kinds of cases where the wicked use morality as a lever against the righteous seem different and less direct from what would be the case if slavery, forced marriage and unjust laws had the normative force that they pretend to. It is a mere coincidental effect of duties to family when these duties make it morally impossible or difficult to stand up to a wicked regime. But it would be of the very nature of the norms induced by slavery, forced marriage and unjust laws—if these norms really came into existence—that they would oppress.
This still leaves an interesting puzzle, which different moral theories will answer differently: Why is it the case that morality does not innately oppress?
Objection: Maybe slaveryh does create norms, but not moral norms.
Response: I myself don’t think there are any non-moral norms. But in any case slaveryh does not create any kind of obligation on the slave to obey the master, whether moral or not, except in some, but not all, cases a prudential one.
Here’s an interesting double-counting problem for wrongdoing. Alice stands to inherit a lot of money from a rich uncle in Australia. Bob thinks he stands to inherit a lot of money from a rich uncle in New Zealand. Both of them know that it’s wrong to kill rich uncles for their inheritance, but each of them nonetheless hires a hitman with the instruction to kill the rich uncle. Both hitmen run off with the money and do nothing. But Bob in fact has no uncles—he was misinformed.
Here are some plausible observations:
Alice culpably committed two wrongs: she violated her conscience and she wronged her uncle by hiring a hitman to kill him.
Bob culpably committed only one of these wrongs: he violated his conscience.
Bob is just as morally culpable as Alice.
Here is one way to reconcile these observations. We should distinguish between something like moral failings of the will, on the one hand, and wrongdoings, on the other. It is the moral failings of the will that result in culpability. This culpability then will qualify one or more wrongdoings. But the amount of culpability is not accounted by looking at the culpable wrongdoings, but at the moral failings of the will. A being that executes unalloyed perfect justice will look only at these failings of the will. Alice and Bob each morally failed in the same way and to the same degree (as far as the stories go), and so they are equally culpable. But, nonetheless, Alice has two culpable wrongdoings—culpable through the same moral failing of the will, which should not be double counted for purposes of just punishment.
Peter van Inwagen argues that because a little less evil would always serve God’s ends just as well, there is no minimum to the amount of evil needed to achieve God’s ends, and hence the arguer from evil cannot complain that God could have achieved his ends with less evil. Van Inwagen gives a nice analogy of a 10-year prison sentence: clearly, he thinks, a 10-year sentence can be just even if 10 years less a day would achieve all the purposes of the punishment just as well.
I am not convinced about either the punishment or the evil case. Perhaps the judge really shouldn’t choose a punishment where a day less would serve the purposes just as well. I imagine that if we graph the satisfaction of the purposes of punishment against the amount of punishment, we initially get an increase, then a level area, and then eventually a drop-off. Van Inwagen is thinking that the judge is choosing a punishment in the level area. But maybe instead the judge should choose a punishment in the increase area, since only then will it be the case that a lower punishment would serve the purposes of the punishment less well. The down-side of choosing the punishment in that area is that a higher punishment would serve the purposes of the punishment better. But perhaps there is a moral imperative to sacrifice the purposes of punishment to some degree, in the name of not punishing more than is necessary. Mercy is more important than retribution, etc.
Similarly, perhaps, God should choose to permit an amount of evil that sacrifices some of his ends (ends other than the minimization of evil), in order to ensure that the amount of evil that he permits is such that any decrease in the evil would result in a decrease in the satisfaction of God’s other ends. If van Inwagen is right about there not being sharp cut-offs, then this may require God to choose to permit an amount of evil such that more evil would have served God’s other ends better.
The above fits with a picture on which decrease of evil takes a certain priority over the increase of good.
