Abstract
We are now in a position to ask the central question of the debate: if punishment aims at the defense of honor, does that provide a sufficient moral defense of punishment? And does it tell us what is the appropriate level of punishment for a given wrong? The approach of this chapter is to set out the key moral issues that must be addressed in this debate, though without attempting to settle the debate. The first moral issue is intentionality; we review the claim that punishment aims not at the suffering of the criminal in itself, but at the defense of honor. The second issue is proportionality: is honor a sufficiently important value as to justify the infliction of significant harm on wrongdoers? The third issue is necessity: is the infliction of hard treatment the only way to vindicate honor? We argue that there is room for debate on both sides of this question; the Abolitionists are wrong to suggest that punishment is obviously morally unjustified; while the retributivists are wrong to argue that hard treatment is obviously morally justified and even required. Without purporting to settle this debate, we end with a suggestion that in the future our society may learn it is able to vindicate honor without having to inflict significant hard treatment on offenders.
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Notes
- 1.
Furthermore, the fact that the average person is not familiar with the intend/foresee distinction means that he will be likely to (mis-)describe all merely foreseen harm as intentional. Thus the use of polls or anecdotes will likely give the wrong impression that even merely foreseen harm appears to be intentional. I discuss this problem in detail in Kaufman (2009).
- 2.
And recall that, even if retributive punishment largely is discredited, we have argued that preventive detention is a separate and morally legitimate basis for imprisonment, so long as it satisfies the basic requirements of necessity, proportionality, and so forth.
- 3.
1990, 271. Note however that Miller makes the common error of identifying honor merely with appearance to others. As argued in the preceding chapter, the issue is not merely the appearance of honor but its reality, for the virtue of honor cannot be known apart from its exercise.
- 4.
Quoted in “The Dangers of Forgiving too Easily,” April 19, 2011, at http://theforgivenessproject.com/news/the-danger-of-forgiving-too-easily-2/
- 5.
See e.g. Roche (2004).
- 6.
E.g., Wenzel (2008, 375).
- 7.
- 8.
Advocates of the theory waffle on whether it is coercive. Zehr says “voluntary participation is maximized,” but that “offenders may be required to accept their obligations if they do not do so voluntarily” (2002, 65). But that is an Orwellian way of saying it is not voluntary but coercive.
- 9.
See discussion in Kahan (1996, 607–615). Of all American states, only Delaware continued to authorize corporal punishment into the twentieth century.
- 10.
Cf. Whitman (2003).
- 11.
See Stuntz (2011) for a general discussion of the causes of the US incarceration boom.
- 12.
See e.g. Murphy (2011).
- 13.
Cf. Zehr: “restorative justice provides an alternative framework for thinking about wrongdoing” (2002, 5).
- 14.
A good modern illustration of the role of the victim in demanding revenge is a recent criminal case in Iran, involving the punishment of a man who had in 2004 thrown a bucket of acid over the head of a woman who had rejected him, blinding and disfiguring her. The victim, against the desires of the authorities, insisted on her right to literal eye for an eye retribution, and demanded that he be blinded in both eyes with acid, even declaring she would like to carry out the blinding herself. The court permitted her request but reduced the penalty to blinding in just one eye. Under intense pressure not to insist on this penalty, the woman at the last moment agreed to spare him the penalty. The offender was sentenced to 10 years in prison. See e.g. http://www.bbc.co.uk/news/world-middle-east-14356886
- 15.
2002, 13, 15. To the extent Zehr sees a difference, it is because he makes the common mistake (unfortunately encouraged by retributivists) of seeing the purpose of retribution as giving the wrongdoer his “desert” (id., 39).
- 16.
Even the name of the theory, “restitution,” misleadingly implies that it offers the possibility of returning what was lost; the more usual meaning of the term “restitution” involves the actual return of the physical item that was taken. See, e.g., Minow (1999, 107).
- 17.
2008, 232, 233. His repeated use of this phrase as a sort of mantra without carefully defining it suggests there is something more going on.
- 18.
Minow (1999, 112–113).
- 19.
Whether these two standard examples of “victimless crimes” are in fact victimless is by no means obvious. However, for purposes of the present argument, we consider the problem of victimless crimes assuming that there are such things.
- 20.
Ironically, some critics of retributivism blame it for the prevalence of victimless crimes. See Benson (2011).
- 21.
Krause (2002, 31).
- 22.
Essay II, Section 10 (transl. Kaufmann).
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Kaufman, W.R.P. (2012). Is Punishment Justified?. In: Honor and Revenge: A Theory of Punishment. Law and Philosophy Library, vol 104. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4845-3_8
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