Abstract
Should those who get dirty hands be punished? There is strong disagreement among even those who support the existence of such scenarios. The problem arises because the paradoxical nature of dirty hands - doing wrong to do right - renders the standard normative justifications for punishment unfit for purpose. The Consequentialist, Retributivist and Communicative approaches cannot accommodate the idea that an action can be right, all things considered, but nevertheless also a categorical wrong. This paper argues that punishment is indeed appropriate for those who dirty their hands and that there are three normative justifications that can be used to support this claim. These are the justifications from ‘Catharsis’, ‘Recognition of Evil Suffered’ and ‘Causal Responsibility’. Together they provide the sui generis justifications for punishing dirty hands.
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Notes
de Wijze (2005).
Stocker (1992): 9.
See Stocker (1992): 10.
Whether or not DH scenarios can arise from natural events I leave aside here. For a view that natural events do give rise to DH see Goodwin (2009): ch. 7.
Stocker (2000), ‘Dirty Hands and Ordinary Life’: 28.
de Wijze (2005): 463–471.
For an extended account of why punishment needs to be justified see Bedau et al. (2010).
I need to be clear here that I am not suggesting that finding a justification for praising those with DH is easier than finding one for punishment. The former task might prove even more difficult than a justification for punishment. However, I leave this task to another paper.
The literature on punishment is extensive, complex and subtle. There are the different strands of consequentialism, retributivism, and communicative theories in addition to hybrids that seek to combine the different justifications. Punishment can also be justified from a purgative or incapacitative rationale. For a taste of some of the central texts on punishment see Bennett (2008), Duff (2001), Feinberg (1970), Garvey (1999), Hart (1968), Kramer (2011), Matravers (2000), McDermott (2001): 403–432, and Von Hirsch (1998). For a useful discussion on the problems with defining punishment see Lacey (1988): 4–8.
Duff (2001): xiv-xv.
Tasioulas understands punishment to be ‘a practice that involves (a) the deliberate infliction of hard treatment, (b) on an alleged wrong-doer, (c) because of the alleged wrongness of their conduct, (d) by someone who claims the authority to inflict it for that reason, where (e) the hard treatment is intended to communicate to the wrong-doer justified censure for their wrong-doing.’ See Tasioulas (2006): 283.
Tasioulas (2006): 284. Although Duff includes an expressive element to his account he focuses on punishment as reparation or atonement. Duff insists that condemnation itself is sufficient to justify punishment on the grounds that it ought to take place even if the offender cannot repeat the violation or has already repented or is unlikely to be persuaded to act otherwise by the communicative or deterrent nature of punishment. See Duff (1998): 162. (I am indebted to Kimberly Brownlee for this point.)
There is a fourth approach which favours the abolition of punishment altogether but I shall not include this position largely because its focus is mostly on the abolition of legal sanctions and my focus is on the normative. As Cohen points out, ‘for abolitionists … punishment is not a solution to be justified by philosophers, allocated by lawyers and measured by criminologists. It is a problem to be solved by an imaginative quest for alternatives.’ Cohen (1991): 733. For a far reaching debate on the abolitionist position and alternative to punishment see the ‘Alternative to Punishment’ section of the Israeli Law Review 1991. 25 (3–4).
I say ‘roughly’ as I am not claiming that this threefold categorisation exhausts the different philosophical approaches to justifying punishment. What I do contend is that these three significant approaches cannot be used to justify punishing DH.
The ‘desert-based’ approach argues that those who do wrong deserve to be punished while the ’rights-based’ approach argues that punishment is due since those who have been wronged have had their rights violated and the punishment is necessary to correct this injustice. It is useful to examine Kant’s justification for punishment as a paradigmatic Retributivist account. Kant argues that there is a ‘principle of equality’ which must be enforced. If a wrong is committed, this upsets the balance of the scale of justice. The person who has committed the wrong has inflicted suffering on another, and so now is herself deserving of suffering to rectify the balance. Consequently, it is necessary to punish the offender. The notions of justice and desert are clearly fundamental to Kant’s justification of punishment and he does this to ensure that the punishments are proportionate and directed only at those who properly deserve such treatment. Punishing the innocent is strictly prohibited in stark contrast to what may be justified under a Consequentialist justification. Also see Kemp (1968): 89.
John Rawls famously makes this criticism of consequentialist accounts of distributive justice in his A Theory Of Justice. See Rawls (1971): 27–33.
See Duff (2001): Ch. 2.
There are different variants of the Communicative theory. Duff, for example, formulates a Monastic approach that is essentially backward-looking as it is desert based. The Communicative aspect affords no independent justification for punishment. Pluralistic variants, such as Tasioulas’, are not purely desert based since justified punishment is not necessarily the same as deserved punishment. For example, the former can be reduced if the offender repents. (I am indebted to Kimberley Brownlee for bringing this to my attention).
Levy (2007): 43.
The issue of whether it would be possible to find a legal basis for punishing DH is a difficult one. As far as I am aware, there is no room in existing criminal law theory for a case where an agent commits a justified wrong and is also the object of legal punishment. Wrongdoing accompanied by an adequate justificatory defence attracts no punishment and wrongdoing that proffers an excusatory defence is either not punished or draws a lesser punishment. DH scenarios fall between the cases of wrongdoing that ought to be punished and those with a justificatory defence that ought not to be punished. In legal terms the latter category renders the wrong done defeasible, one trumped by an undefeated reason. I am concerned with the normative rather than legal basis for punishment in this paper and my justifications for punishing DH seek to find that space which is not available in the legal framework. However this does not mean that DH can avoid legal sanction. In some cases and especially for public figures, it may be necessary. However, the legal issues raise further complications even if we could find the legal space for the idea of a justified action that nevertheless violates a categorical wrong. There is an additional problem that if such acts are committed by the legitimate authorities (politicians, police, army etc.) there may be no one (short of the priest and the confessional) to whom we could entrust with the task of punishing those with DH even if we could find the legal space for such punishment. See Walzer (1973): 179.
Walzer explores three traditions of thinking about the interaction between politics and morality and each of these offers an account of the costs for getting DH; namely, the Neoclassical, Protestant and Catholic perspectives. These three approaches draw on the works of Machiavelli (1997), Weber (1948) and Camus (1958) respectively. These traditions do not offer normative justifications for punishment but rather illustrate the different ways in which the costs of DH could be experienced. The Neoclassical tradition focuses on the consequences to the individual of success and failure. There is no reward for good motives if the actions undertaken fail. A politician dirtying her hands does not risk her goodness but rather glory and power. The Protestant tradition focuses on individual suffering for committing wrongs. A politician who gets DH lives by an ‘ethic of responsibility’ and loses her soul becoming a tragic hero and suffering servant. She pays the price so that others do not need to do so. The Catholic tradition, which Walzer is inclined to endorse, rejects the Protestant approach as it focuses entirely on the inner life of the politician. Political crimes need to be socially acknowledged and the punishment socially limited. For a more detailed account of these traditions see Walzer (1973): 174–180.
Walzer (1973): 178. I return to this justification when I examine my justification from ‘Catharis’ below.
Walzer (1973): 167.
Walzer (1973): 167.
Walzer (1973): 178.
Walzer (1973): 177 puts it this way: punishment needs to be socially expressed as ‘it confirms and reinforces our sense that certain acts are wrong’.
Walzer (1973): 179/180.
While Walzer hints at this problem his main focus is on the politician’s role and the fact that those who get DH (especially for reasons of state) are highly unlikely to be punished for so acting. Walzer enigmatically states that if such punishment was consistently and reliably applied so that politicians could acknowledge their responsibility for violating a moral or legal rule, then DH would not be a problem. (Walzer 1973: 179.) It is not clear to me why Walzer thinks that this would solve the problem of seeking a normative basis for punishing DH. The issue of who punishes and the institutional problems with enforcing or administering punishment are practical questions that need to be considered after the justification for so acting has been settled.
Levy (2007).
Levy (2007): 40–41.
Levy relies on the distinction between first-person and second-and-third-person ascriptions of responsibility. The former is identified by the moral emotions of guilt, shame and pride. The latter are associated with blame and praise. In DH scenarios the agent is right to feel guilt and pride for having so acted but ascription of blame and praise rests with others who benefited from the action. See Levy (2007): 40.
Levy (2007): 45.
Levy (2007): 50.
By ‘complex of immorality’ I mean those situations in which good persons find themselves facing options where they cannot avoid committing a categorical wrong. These situations are brought about by the immoral or evil projects of other persons.
Levy (2007): 50.
Meisels (2008): 173. Meisels argues that Walzer acknowledges the immorality of punishing the dirty when he states that when we so act we too get dirty hands. See Walzer (1973): 180. ‘Meanwhile he lies, manipulates, and kills, and we must make sure he pays the price. We won’t be able to do that, however, without getting our own hands dirty, and then we must find some way of paying the price ourselves.’
Levy (2007): 50.
See Davis (2009): 75–77. I have borrowed and modified what Davis refers to as the ‘Flew-Benn-Hart definition’ where punishment is concerned with institutions inflicting penalties on individuals who fail to follow a body of rules.
There may be a fourth justification, which I call the justification from ‘metaphysical concerns’, where punishment acknowledges the complexity and moral pluralism underlying our ethical lives. One way of understanding DH is to see such acts as the inevitable consequence of unavoidable conflicting pluralist values where punishment is necessary for proper acknowledgment of this reality. For example the value of punishing those who violate categorical wrongs is pressing yet we also balk at punishing those who are blameless. (DH scenarios, for example, involve conflicting values in the same way that freedom and equality conflict in theories of justice. Too much freedom undermines equality whereas too much equality unacceptably restricts freedom.) However I decided to leave ‘metaphysical concerns’ aside as it is less a justification as one particular way of understanding the structural background of our moral reality of which DH is a part.
See Walzer (1973):178. Walzer refers to this cathartic purpose of punishment as ‘self-punishment and expiation’.
Garvey (1999): 1810–1845 offers a secular version of punishment as atonement. This justification for punishment is one that is developed for an ideal community. By ‘ideal community’ Garvey means those groups of persons who identify with each another as members of a community but also sometimes act in ways that wrong others in the community.
Justice as atonement clearly has a theological heritage and we find religious justifications of this kind at least as far back as St Anselm in the 11th Century. (Garvey (1999): 1802–3.) Recent theorists who offer secular accounts are Duff (1991) who argues for a communicative account of punishment where punishments are understood as penances. Also see Adler (1991) and Hershenov (1999) for similar approaches to justifying punishment.
See Miller (2007).
The view that doing the right thing all things considered or that the overall good (or least evil) was achieved and hence no moral violation has occurred is the standard view of deontological and and consequentialist moral theories. The justification from ‘catharsis’ is designed specifically to reject this approach by acknowledging the paradoxical nature of DH.
Garvey argues that the process of expiation involves four processes: repentance, apology, reparation and penance. Of these four processes only penance applies to DH scenarios in an uncomplicated manner. Repentance for getting DH cannot be the same as repentance for the wrongdoer who ought to repudiate that aspect of their character that led to such acts accompanied by the resolve to never so act again. Similarly, the apology given is of a different order to that given by the wrongdoer who by apologising acknowledges her wrongdoing and simultaneously disowns it thereby dissociating the true self from the guilty self. (See Garvey 1999: 1816). An apology in the DH scenario is one which apologises for committing a categorical wrong in order for the community to observe that the politician (or public servant) is aware of the violation of a cherished value/rule and is aware of the moral pollution that results from such an action. Reparation for the ordinary wrongdoer involves two aspects: the material harms done and the moral wrong committed. In DH scenarios reparation is complicated by the fact that the violation of another person’s rights and the material harm inflicted were the right thing to do in order to bring about the lesser evil. But the need for reparation, especially for the moral wrong committed, is important to uphold the inviolability of certain central and cherished moral values.
This view is echoed by Walzer when he argues that we want a politician that is ‘not too good for politics and that he is good enough’. That is, a politician who will be willing to get DH (not too good) and also be willing to pay the price for doing so (good enough). See Walzer (1973): 167–8.
See de Wijze (2009) for an analysis of targeted killing as a case of DH.
If the justification from catharsis does indeed act as a form of therapy is it punishment rightly understood? Does it fit with the definition of punishment offered, for example, by Duff? It seems to me that it does and that the punishment meted out to those who have DH will be burdensome or painful and imposed by an appropriate authority expressing or communicating censure. Imposing such burdens on agents with DH works as a form of therapy precisely because it is understood to be a form of punishment for so acting.
Gaita (1991): Chs. 4and 5.
Gaita (1991): 74. By drawing on Gaita’s work I don’t mean to imply that he would endorse my use of his ideas for justifying punishment in DH cases. Given Gaita’s views on the relationship between ethics and politics, I suspect he might find the very notion of DH (at least as I have construed it) problematic and so too the justifications for punishment that I offer here. (See Gaita’s ch.14 but especially his comments on Walzer’s notion of DH on 261–262.)
This belief in part explains why the standard deontological and consequentialist moral theories deny the existence of genuine moral dilemmas. The correct application of the preferred moral theory dissolves the prima facie moral conflict. It has been pointed out to me that hybrid and pluralist theories of morality and their attending views on punishment would not need to be reductionist about our ethical lives. I agree and expect that such theories are likely to be sympathetic to my account of DH and my justification from ‘evil suffered’.
Gaita (1991): 80.
Gaita (1991): 80.
Some might consider the scope of this recognition to be wide enough to encompass most higher sentient beings.
Arendt (1990): 71
By ‘non-intentional’ here I do not mean that the each specific action was compulsive or due to outside forces that could not be resisted. Oedipus does not act like an automaton. Rather, what is meant here is that his chosen actions were inevitable given his destiny foretold by the prophesy at his birth, one which Oedipus did not choose nor could he change.
Williams (1994): ch. 3 points out that any conception of responsibility for actions has four different elements: cause, intention, state and response (55.) Our actions are sometimes caused by events outside our control or knowledge. But our actions cause things to happen, and some of these outcomes were intended but often they are not. Certain outcomes that are involuntarily brought about might be regretted by the agent and/or by those who suffer from such outcomes. When this happens there is a demand for a response – a demand from the agent herself and/or by those who suffer from the action. Williams’ crucial insight here is that it is entirely plausible to have such situations where there is responsibility for actions which were not intentional but brought about outcomes that are regrettable. Consequently, if our actions caused by circumstances beyond our control result in unintended harmful outcomes, we can still be held responsible for them. And if this is true, then we can justifiably punish such persons for their actions.
Walzer (1973): 177.
If my justifications for punishing DH are persuasive there remains the separate and difficult question of what kinds and how much punishment would be appropriate. The justifications in themselves do not give guidance concerning the specific nature and severity of appropriate and reasonable punishments. However, there are moral boundaries constraining the nature and extent of punishments in a just liberal society which can be stated as useful general principles. (Bedau et al. 2010: section 4 , for example, offer four principles for constraining the use of punishment in a just liberal society. ) While this is not the place to examine these issues at length I simply state three principles that constrain punishment for DH in a liberal democratic society. To this end we can say that punishment for getting DH cannot be cruel and gratuitous nor violate the rights of agents. Secondly, it must be proportionate to the immoral or criminal act committed. And, thirdly, it must be open to an even greater degree of discretion and flexibility than cases of punishment for ordinary wrongdoing. Beyond this there is a wide variety of punishments for political agents ranging from criminal trials, electoral retaliation, social ostracism and removal of office. In some cases self-punishment such as resignation would be appropriate. For a more detailed account of such punishments see Garrett (1996): ch 2.
Hollis (1982): 398.
I am indebted to Jeremy Barris, Chris Bennett, Kimberley Brownlee, Eve Garrard, and Mark Reiff for extensive comments on earlier versions of this paper. They have prevented me from making many elementary errors. My thanks also to Tony Coady, David Rodin, Michael Neu, Jon Quong, and the participants attending the MANCEPT one day conference on ‘Terrorism and Dirty Hands’ in 2011 for their useful comments. An earlier version of this paper was also read at the weekly philosophy seminar at Virginia Tech University 2011, and at the 2011 MANCEPT Political Theory Workshops. I am grateful to the participants of the philosophy seminar and the ‘Dirty Hands’ workshop for the many helpful suggestions and comments. I am also indebted to two anonymous reviewers for their insightful comments.
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Appendix 1
Appendix 1
The table below sets out the different ways in which the relationship between responsibility, avoidability, guilt, praise, blame and punishment might be understood. The ‘Responsibility’ column refers to the chosen action taken by an autonomous moral agent who does so knowing that her actions have violated an important moral value. The ‘Avoidability’ column refers to whether the agent could have done otherwise given the circumstances in which she finds herself (Table 1).
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de Wijze, S. Punishing ‘Dirty Hands’—Three Justifications. Ethic Theory Moral Prac 16, 879–897 (2013). https://doi.org/10.1007/s10677-012-9396-x
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DOI: https://doi.org/10.1007/s10677-012-9396-x