Punishment and amnesia

There is an interesting philosophical literature on whether it is appropriate to punish someone who has amnesia with respect to the wrong they have done.

It has just occurred to me (and it would be surprising if it’s not somewhere in that literature) that it is obvious that rewarding someone who has amnesia with respect to the good they have done is appropriate. To make the intuition clear, imagine the extreme case where the amnesia is due to the heroic action that otherwise would cry out for reward.

If amnesia does not automatically wipe out positive desert, it also does not automatically wipe out negative desert.

Punishment, reward and theistic natural law

I’ve always found punishment and (to a lesser extent) reward puzzling. Why is it that when someone does something wrong is there moral reason to impose a harsh treatment on them, and why is it that when someone does something right—and especially supererogatory—is there moral reason to do something nice for them?

Of course, it’s easy to explain why it’s good for our species that there be a practice of reward and punishment: such a practice in obvious ways helps to maintain a cooperative society. But what makes it morally appropriate to impose a sacrifice on the individual for the good of the species in this way, whether the good of the person receiving the punishment or the good of the person giving the reward when the reward has a cost?

Punishment and reward thus fit into a schema where we would like to be able to make use of this argument form:

1. It would be good (respectively, bad) for humans if moral fact F did (did not) obtain.

2. Thus, probably, moral fact F does obtain.

(The argument form is better on the parenthetical negative version.) It would be bad for humans if we did not have distinctive moral reasons to reward and punish, since our cooperative society would be more liable to fall apart due to cheating, freeriding and neglect of others. So we have such moral reasons.

As I have said on a number of occasions, we want a metaethics on which this is a good argument. Rule-utilitarianism is such a metaethics. So is Adams’ divine command theory with a loving God. And so is theistic natural law, where God chooses which natures to exemplify because of the good features in these natures. I want to say something about this last option in our case, and why it is superior to the others.

Human nature encodes what is right and wrong for. Thus, it can encode that it is right for us to punish and reward. An answer as to why it’s right for us to reward and punish, then, is that God wanted to make cooperative creatures, and chose a nature of cooperative creatures that have moral reasons to punish and reward, since that improves the cooperation.

But there is a way that the theistic natural law solution stands out from the others: it can incorporate Boethius’ insight that it is intrinsically bad for one to get away unpunished with wrongdoing. For our nature not only encodes what is right and wrong for us to do, but also what is good or bad for us. And so it can encode that it is bad for us to get away unpunished. It is good for us that it be bad for us to get away unpunished, since its being bad for us to get away unpunished means that we have additional reason to avoid wrongdoing—if we do wrong, we either get punished or we get away unpunished, and both options are bad for us.

The rule-utilitarian and divine-command options only explain what is right and wrong, not what is good and bad, and so they don’t give us Boethius’ insight.

Punishment, criticism and authority

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.

Punishment is not a strict requirement of justice

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.

Two sources of discomfort with substitutionary views of atonement

On one family of theories of the atonement, the harsh treatment that justice called for in the light of our sins is imposed on Christ and thereby satisfies retributive justice. Pretty much everybody who thinks about this is at least a little bit uncomfortable with it—some uncomfortable to the point of moral outrage.

It’s useful, I think, to make explicit two primary sources of discomfort:

1. It seems unjust to Christ that he bear the pain that our sins deserve.

2. It seems unjust that we are left unpunished.

And it’s also useful to note that these two sources of discomfort are largely independent of one another.

I think that those who are uncomfortable to the point of moral outrage are likely to focus on (1). But it is not hard to resolve (1) given orthodox Christology and Trinitarianism. The burden imposed on Christ is imposed by the will of the Father. But the will of the Father in orthodox theology is numerically identical with the will of the Son. Thus, the burden is imposed on Christ by his own divine will, which he then obeys in his own human will. It is thus technically a burden coming from Christ’s own will, and a burden coming from one’s own will for the sake of others does not threaten injustice.

While (2) is also a source of discomfort, I think it is less commonly a discomfort that rises to the level of moral outrage. Maybe some people do feel outrage at the idea that a mass murderer could be left unpunished if she repentantly accepted Christ into her life and were baptised. But I think it tends to be a moral fault if one feels much outrage at leniency shown to a repentant malefactor.

I also think (2) is the much harder problem. Note, for instance, that the considerations of consent that dissolve (1) seem to do little to help with (2). Imagine that I was a filthy rich CEO of a corporation that was knowingly dumping effluent that caused the deaths of dozens of people and I was justly sentenced to twenty years imprisonment. It would clearly be a failure of justice if I were permitted to find someone else and pay her a hundred million dollars to go to prison in place—even though there would no doubt be a number of people who would be very eager, of their own free will, to do that for the price.

It would be nice if I could now go on to solve (2). But my main point was to separate out the two sources of discomfort and note their independence.

That said, I did just now have a thought about (2) while talking to a student. Suppose that you do me a very good turn. I say: “How can I ever repay you?” And you say: “Pass it on. Maybe one day you’ll have a chance to do this for someone else. That will be repayment enough.” If I one day pass on the blessing that I’ve received from you, justice has been done to you. The beneficiary of my passing on the blessing rightly substitutes for you. Maybe there is a mirror version of this on the side of punishment?

Just deserts

The following argument is valid:

1. (Premise) When one gets one's just deserts, one gets what one deserves.
2. (Premise) One can only deserve that comes from an agent or group of agents.
3. (Premise) There are cases of getting one's just deserts such that unless there is a God, then what one gets does not come from an agent or group of agents.
4. So, when one one gets one's just deserts, one gets something that comes from an agent. (1 and 2)
5. So, there is a God. (3 and 4)

The kinds of cases that I am thinking about in (3) are cases like when one has done something utterly terrible, and then an avalanche kills one, or one has done something really good, and then one wins a non-crooked lottery. These are cases where the only candidate for an agent behind the just deserts is God.

The basic line of thought is that one can talk about someone getting justice in cases where there is no human agency. But justice seems to be essentially the work of an agent or community. So either we are mistaken in talking of justice in such cases or we need to posit Providence (or aliens who work providentially, but the divine Providence hypothesis has other advantages).

Divine omnirationality, reward and punishment

Omnirationality is the divine attribute in virtue of which when God does A, he does it for all the non-preempted reasons that in fact favor his doing A. (Here is an example of a reason preempted by a higher order reason: God promises me that as a punishment, he won't hear my prayers for the next hour; then that I ask God for something creates a preempted reason for him.) He does not choose only some of the relevant reasons and act on those, in the way a human being might.

One consequence of omnirationality is that when I pray for an event F, and F is good and in fact takes place, then I can safely conclude that F took place in part as a result of prayer. For a request is always a good reason to do something good, and while in principle the reason could be preempted, in fact it seems very unlikely that there was a preempting reason in this case. At this same time, in this case we cannot say that the good took place entirely as a result of prayer, because the very fact that it was a good was also, presumably, a non-preempted reason for God to bring it about.

Here is another example. Suppose Job leads a virtuous life in such a way that there is good reason for Job to have good things bestowed on him as a reward for the virtuous life. And suppose that, in fact, good things befall Job. Then we can confidently say that they befell Job in part in order to reward Job. For by hypothesis, God has a reason (not a conclusive one, as we learn from the Book of Job!) to bless Job, and the reason seems unlikely to be preempted, so when he blesses Job, he does so in part because it rewards Job.

The flip side of this is that, by omnirationality, if a sinner who has not been forgiven for a sin has a bad thing happen to her whose magnitude is not disproportionate to the sin, that bad thing happens to her at least in part as a divine punishment, unless some sort of preemption applies, since God has a reason to punish.

Forgiveness, of course, would preempt. But I assumed here the sin was unforgiven. Maybe one could claim that the redemptive events of the New Testament changed everything, preempting all of God's reasons to punish, but that does not seem to be the message of the New Testament. It really does seem that God's reasons to punish unforgiven sin are not preempted even in New Testament times. This does not, of course, mean that all evils that happen to people are best seen as divine punishments. First of all, forgiveness of a sin preempts, and probably annuls, the reasons of justice. Second, even when the justice of the matter is a non-preempted reason for God to allow the evil to befall, it need not be the most important one. God's desire to use the evil to reform the sinner or to glorify himself in a deeper way, may be a more important reason, sometimes to the point where it would be misleading, and maybe even false, to say that the evil befell because the person sinned—we could only say that the evil befell in small part because the person sinned.

Finally, as Jesus himself warns, that an evil befalls A and does not befall B does not imply that A was more worthy of the evil than B. For God may have had many additional reasons for allowing the evil to befall A and keeping it from B besides the merits of the wo.

We can try to probe more deeply by asking counterfactual questions: Would God still have had the evil befall A had A not sinned? But I think such counterfactual questions tend not to have answers.

Penalty and reward substitution

Christ bore the suffering due for our sins, in our place. One might worry whether this makes any moral sense. Assume a retributive view of punishment, on which wrongdoing provides a reason, not based on the protection of society or the reformation of the wrongdoer, to treat the wrongdoer harshly.

Now, the best argument I know for a retributive view of punishment is the parallel with reward. Doing more than one's duty is a reason to be rewarded, in proportion to how far above one's duty one has gone. By parallel, doing less than one's duty is a reason to be punished, in proportion to how far short of one's duty one has fallen.

But in reward situations, we fully accept reward substitution. Sally has earned a large cash prize as a reward for her life's work in getting the Elbonians and Olbenians to forget their past differences and live in harmony. She directs the bestower of the prize to give it to the Orphans of Mixed Elbonian-Olbenian Descent Protection Fund. Some consideration of justice would have been satisfied by giving the prize to Sally. But when the substitution is made, the very same consideration of justice is still satisfied.

If retributive punishment is the flip side of retributive reward, and if we are untroubled by reward substitution, we should be equally untroubled by penalty substitution. Fred's receipt of harsh treatment that was due Sally could satisfy the reason of justice to treat Sally harshly, just as the Orphan Fund's receipt of the money due Sally could satisfy the reason of justice to reward Sally.

There are, of course, some consent conditions on reward substitution. For y's receipt of a good that was to be x's reward to be a valid substitution, x has to consent. Moreover, it may be that y has to either consent or be presumed to consent to receiving the good qua substitution for x. If Hitler got the Nobel Peace Prize and directed the money to my research fund, saying that my research work promotes his ideals, I would have very good reason to refuse. And if I were given the money despite my refusal, it is not clear that it would be a valid substitution. Further, maybe the persons who were the primary benificees of x's supererogatory action--the ones by benefiting whom x gained the reward--need to consent or be presumed to consent to the substitution.

It would be very interesting if penalty substitution required the same consent conditions. Thus, if Sally is due harsh treatment, and Fred offers to suffer it for her (so, Fred's consent is built into the story), this is only a valid substitution if Sally consents to it. This would have the theological consequence that Christ's sacrifice cannot be validly applied in justice to those who never consent to its application. Likewise, if the primary benificees need to consent in reward substitution cases, the primary individual against whom the wrong was done need to consent in penalty substitution cases. If so, this means that Christ's sacrifice requires the view that the primary individual against whom the wrong was done is always God. "Against you, you alone, have I sinned," says the Psalmist, emphasizing this.