Abstract
The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
By ‘prima facie moral rule’ I do not mean a positive rule generated within a worked-out moral system. I mean rather ‘the kind of general imperative we are likely to reach for when we pre-theoretically formulate our moral ideas’. That there is a pre-theoretical moral inhibition against inflicting suffering will not, I imagine, be denied.
Moore (1997, 183)
Moore (1997, 91).
Moore (1997, 168).
For example, one could believe that all lawbreakers deserve to be afflicted even if no-one is harmed by lawbreaking: the intrinsic worth of the law would ‘require’ that those who break it to be caused to suffer.
The restriction to serious crimes in the argument is important. Moore himself, though willing in principle to regard all immoral conduct “no matter how slight” as eligible for punishment, accepts that the retributive good of punishing “minor moral wrongs” may be overridden by other goods, such as “the liberal goods of pluralism, tolerance and autonomy” (187).
Moore (1997, 229).
Moore (1997, 113).
It is not, we should note, a universal belief forced on us by first principles of reason. It is culturally determined: some past societies have had no such conception of authorship; while other grounds for property entitlements, such as inheritance, are morally quite controversial even in modern Western culture.
Moore (1997, 185).
cf. Searle (1983, 38–41).
See Kahan and Nussbaum (1996) for arguments against this ‘mechanistic’ view.
Moore (1982, 1133).
Moore (1982, 1124).
See Butler, ‘Dissertation Upon the Nature of Virtue’ Butler (1967, 249–250), Smith (1982, 112–113).
Hutcheson (2002, 58–59). Hutcheson’s references to punishment are resolutely proto-utilitarian., e.g. 198 (“Human Punishments are only Methods of Self-Defence; in which the Degrees of Guilt are not the proper Measure, but the Necessity of restraining Actions for the Safety of the Publick”). For Shaftesbury’s view, see Shaftesbury (2001, 36–37).
Butler 249.
“In punishments, a physical evil is coupled to moral badness. That this link is a necessary one, and physical evil a direct consequence of moral badness, or that the latter consists in a malum physicum, quod moraliter necessarium est [a physical evil that is morally necessary], cannot be discerned though reason, nor proved either, and yet it is contained in the concept of punishment, that it is an immediately necessary consequence of breaking the law…” (Kant 1997, 308).
Hume (1998, 158).
Butler, ‘Upon Resentment’ (1967, 130–131) argues that some resentment against offenders is necessary to counteract the effect of compassion, which might otherwise prevent us from punishing them at all.
An example would be Schopenhauer who, in On the Basis of Morality, appeals to our intuitions with a number of examples in his attempt to convince us that “boundless compassion for all living things”, proceeding inevitably from an innate tendency of character, is the single foundation of pure moral conduct (Schopenhauer 1995, esp. s. 19, 167–187). For his correspondingly anti-retributivist justification of punishment, see Schopenhauer (1960, 102–103).
As distinct from a common eighteenth- and nineteenth-century usage in which ‘moral faculty’ is merely a synonym for ‘moral sense’.
Oxford English Dictionary, definition I.1.a.
Moore (1997, 134). Moore accepts that this criterion is “not infallible”, since virtuous feelings can lead us to blame ourselves wrongly, and true judgements (such as that each person deserves the fruits of her own labour) can be prompted by emotions that are less than admirable.
This might be likened to Locke’s “strange doctrine” that our right to punish as a society is derived from a natural right each of us possesses in the pre-social state (Locke 1988, ss. 8–9, 272–273).
Moore (1997, 99).
Ten, following Kleinig, argues that the fact that we can contemplate with equanimity that suffering which consists in the disappointment of a morally bad desire (for example, the suffering of a greedy person who fails to get more than his fair share, or a Nazi who never gets a chance to persecute Jews) calls in question the intuitive plausibility of the principle that “suffering is bad, no matter whose suffering it is” (Ten 1987, 47–48; Kleinig 1973, 67). I do not believe these supposed counter-examples erode the principle that suffering is bad. To accept that the suffering of the Nazi is bad (it may indeed have a special additional kind of badness for him, that of undergoing a pathological desire, quite apart from its frustration) is not to suppose that what he desires to do is good, or other than very bad. We are glad that he suffers the deprivation because—though he does not agree with this—the deprivation of a possibility that would be harmful to others is good, and so is the discouragement given by frustration to further attempts; not because it is intrinsically good that he suffer. The priority of this gladness over any compassion we might feel for a person undergoing a frustrated desire is more than sufficient to account for Ten’s ‘equanimity’. We may, of course, in reality be gratified by the thought of the Nazi’s suffering. Such feelings are understandable and may be of instrumental value in motivating people to combat immoral attempts, but we do not need to claim moral credit for gratification in suffering. (Macaulay famously said that the Puritans hated bear-baiting not because it gave pain to the bear but because it gave pleasure to the spectators. This would be no discredit to the Puritans as long as their objection to the pleasure was that it would plausibly motivate further acts of bear-baiting.).
Moore (1997, 145).
Moore (1997, 148).
Moore (1997, 99).
And, to judge from Crime and Punishment, it is what Dostoevsky would have believed.
References
Butler, J. (1967). Upon resentment. Fifteen sermons (W. R. Matthews (Ed.)). (pp. 120–132). London: G. Bell & Sons.
Duff, R. A. (1996). Penal communications: Recent work in the philosophy of punishment. Crime and Justice, 20, 1–97.
Hart, H. L. A. (1968). Punishment and responsibility (pp. 1–27). Oxford: Oxford University Press.
Hume, D. (1998). Concerning moral sentiment. An enquiry concerning the principles of morals (T. L. Beauchamp (Ed.)). Oxford: Oxford University Press.
Hutcheson, F. (2002). An essay on the nature and conduct of the passions and affections, with illustrations on the moral sense (A. Garrett (Ed.)). Indianapolis: Liberty Fund, Inc.
Kahan, D. M., & Nussbaum, M. C. (1996). Two conceptions of emotion in criminal law. Columbia Law Review, 96, 270–374.
Kant, I. (1997). Lectures on ethics (P. Heath, & J. B. Schneewind (Eds.), P. Heath, Trans.). Cambridge: Cambridge University Press.
Kleinig, J. (1973). Punishment and desert. The Hague: Martinus Nijhoff.
Locke, J. (1988). Second treatise of government (P. Laslett (Ed.)). Cambridge: Cambridge University Press.
Matravers, M. (2000). Justice and punishment: The rationale of coercion. New York: Oxford University Press.
Moore, M. S. (1982). Moral reality. Wisconsin Law Review, 1061.
Moore, M. S. (1997). Placing blame. Oxford: Clarendon Press.
Murphy, J., & Hampton, J. (1988). Forgiveness and mercy. Cambridge: Cambridge University Press.
Rawls, J. (2001). Two concepts of rules. Collected papers (S. Freeman (Ed.)). (pp. 20–47). Cambridge, Mass: Harvard University Press.
Schopenhauer, A. (1960). Essay on the freedom of the will ( K. Kolenda, Trans.). Indianapolis: Bobbs-Merrill.
Schopenhauer, A. (1995). On the basis of morality (E. F. J. Payne Trans.). Oxford: Berghahn Books.
Searle, J. R. (1983). Intentionality. Cambridge: Cambridge University Press.
Shaftesbury (Antony Ashley Cooper, Earl of) (2001). An inquiry concerning virtue and merit. Characteristicks of men, manners, opinions, times (D. Den Uyl (Ed.)). vol. 2 (pp. 3–44). Indianapolis: Liberty Fund, Inc.
Smith, A. (1982). The theory of moral sentiments (D. D. Raphael & A. L. Macfie (Eds.)). Indianapolis: Liberty Fund, Inc.
Ten, C. L. (1987). Crime, guilt and punishment. Oxford University Press: New York.
Acknowledgments
The author is grateful to the anonymous referees of Criminal Law and Philosophy, and to his colleagues Terry Hopton and And Rosta, for their helpful criticism and discussion.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Rosebury, B. Moore’s Moral Facts and the Gap in the Retributive Theory. Criminal Law, Philosophy 5, 361–376 (2011). https://doi.org/10.1007/s11572-011-9117-x
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-011-9117-x