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Lesser of the Evils: Utilitarianism
Lesser of the Evils: Utilitarianism
Adam J. Gazdalski
2005'
The basis of this paper is a comparative analysis of three major views on ‘punishment’ in our society, as well as the defense of what I believe is the most rational and practical of the three. Which is Utilitarianism. The sides of Jeremy Bentham, Herbert Morris, Allan H. Goldman and Jeffrie G. Murphy will be tested both against each other as well as against hypothetical scenarios they or I have shown to either exemplify their view or stand against it. I personally have found that certain aspects of each of the theories presented have issued that should be addressed concerning both the rational behind them, as well as the practicality in front of them.
Jeremy Bentham takes the point of view of the Utilitarian, and though punishment is an ‘evil’ it must be used as a deterrent for other ‘evil’ deeds that might be committed. Herbert Morris believed that Utilitarianism has the problem of allowing the punishment of an innocent man(which I will later attempt to prove incorrect), and that retribution or the balancing of interference, was most important when dealing with the issue of punishment. Allan Goldman was the first to see that there is a paradox when the justice of punishment is analyzed for to punish alone is unjust, whilst to balance and deter unjust acts seems to require it. Murphy takes a similar point of view and agrees that there is a paradox of punishment, but it is that ‘retribution’ is the only morally justified theory and that it is our society that is what is unjust. The problem with stating that there is a paradox lies in the problem that I have with the stance taken against utilitarianism. For without the problem of ‘accusing the innocent’ that is presented in defense of views other than Utilitarianism, the ‘paradox’ that Goldman presents is no longer immanent in the justification of punishment. More simply put: “If the goal of a society is Utilitarian, than could not standing in the way of the greater good be seen as a crime in itself, worthy of punishment?”
We will begin our criticism with the definition of Utilitarianism that is sited and supported by Jeremy Bentham, as well as argued against by the following theorists.
(Bentham, 845) “The general object(utilitarianism in Bentham’s case) that all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief” Here we can clearly see Bentham’s definition of Utilitarianism, and how it is the foundation of his theory for the justification of punishment. We can also see that Bentham accepts that punishment is a form of mischief(or evil) and is only justified when it promises to exclude a greater evil from occurring.
Utilitarianism defined by Bentham is a very common definition, if not the only definition Utilitarians use to discuss issues of justice. The question one might raise with such a definition is a separate definition all together. What is this ‘happiness’ that we should have spread out in the community? Does he mean the kind of happiness related to ‘satisfaction of interest’ or is it a less specific definition of happiness? When seeing how he uses the word in his justification for punishment we can see that he most likely means ‘satisfaction of interest’ when he states ‘happiness’, so for our purposes in this paper that is what we will have to conclude for now.
Bentham than states that punishment should be ‘forward looking’. What he means by this is that it should not be seen as just a necessary evil, but it should be seen as the prevention of crime and the securing of public safety. His justification for needing such measures as prevention of crime and securing public safety stem from his Utilitarian basis. We can see now that the rest of his argument depends on the validity of its Utilitarian foundation.
Can Utilitarianism be justified? It seems to make ‘common’ sense. That is, everyone should want to have their interests satisfied(be happy), and getting the most people to have them satisfied also seems very reasonable and just. The main objection that people have with a Utilitarian view is that they say it calls upon immoral acts in order to uphold the greater happiness in certain circumstances. My objection to such an objection is simply this. The action taken is not immoral upon the grounds that in such a circumstance the greater good is more important than the unhappiness of an individual. A common example that portrays this is:
In a hypothetical town consisting of one hundred people a bank robbery takes place. The robber escapes and a mob gathers to catch the person who did it. Within this town there is a single family that is disliked by the majority of the community for whatever reason, and when the mob went out looking for a scapegoat they decided to burn down the house of the disliked family. Seeing this, the sherif realizes he needs to hang at least one person and claim they are the robber in order to stop the nonsensical burning down of the disliked but still innocent family’s house.
This example of an immoral act being used to uphold utilitarianism is one that has been used to discount utilitarianism as ‘unjustifiable’ and sometimes makes retribution look a lot more promising. What I find very interesting about this so called objection is that there is not much of a difference between hanging an innocent man in order to quell the killing of five innocents, and killing a guilty murderer to deter the murdering of five innocents. Is it really that important that the man is guilty or not guilty? Is it not more important that the specific scenario requires his death to save the lives of many others? In order to clarify this another example of an innocent man being killed to save the lives of many others needs to be addressed. This time it will entail the same circumstanced, but the man in question is not guilty:
A gang of murderers is stationed in a ‘red light’ district in a city. They all have killed before and none of them has yet to be caught, until now. The police capture a single member of the gang and bring him in for questioning. He says that he will never disclose information about his other gang members and that they will continue killing because they believe there is no reason not to. Of course this is assuming that no other man has been given capital(strict enough) punishment in the area to deter them. The jury at the caught man’s trial decides it would be best for the society as a whole to administer capital punishment in an effort to deter future murders by the fellow gang members.
This example is an even more likely scenario than the previous one that is so commonly used against Utilitarianism, and the only element that is different in the two is the fact that on one hand the man was guilty and in the other case he was not. Here I would like to make the point that unless a man is given a punishment in an effort to change his psychology, the only other purpose for punishment that has any bearing on the ‘bettering of society’ is deterrence, and that is exactly what Utilitarianism attempts to do! There is one more example worth discussing when it comes to the deployment of Utilitarianism in a society.
In this final example an African American man lives in a town with a majority of racist Caucasians in the deep south. According to the Utilitarian principles the white majority marches on the mayors house and demands that Jim Crow laws be placed back into effect. If they were to be put back into effect, it can be argued that the (assumed racist...) white majority in the town will experience much happiness and the small black population will be ‘out weighed’ in happiness so to speak. The problem with this example being used as an opposition to Utilitarianism is that it is not a proper use of the theory!
If the mayor was to reenact the Jim Crow laws, this would have so many negative consequences that would hinder the happiness of the whole population that they are almost uncountable. Sure it may look on the surface that the white majority is ‘happier’, but are they truly ‘happier’ than the black minority are ‘sad’?
Referring to Epicurus’s Ethics:
(Ataraxia, DL VII, 128) “The aim of the blessed life is the bodies health and the soul’s freedom from disturbances.” Epicurus as well as many other philosophers(as well as modern day psychologists and psychiatrists) establish that there are different values of happiness attributed to actions. In the case of the racist community we should establish what kind of happiness the white racists were experiencing and than weigh it against the amount of pain the small black minority was experiencing. The question now is how can we tell which acts show the strongest amount of happiness, and if the racists experience anything like that when the Jim Crow laws were enforced.
To help with this question it would be helpful to refer to the Stoic doctrine on happiness:
(DL VII, 88) “The possessing and exercising virtue is (truest, deepest and strongest) happiness.” Obviously the white racists in the argument did not participate in any virtuous activity when they reinforced the Jim Crow laws. As a matter of fact they participated in an act as far from being virtuous as one can imagine. This would have to mean that the quality of the happiness they experienced was on such a low level that it couldn’t possibly outweigh that of the pain suffered by the black peoples in the community. More simply put, the racists had ‘a lot of something’ that had very little value on its own. It is easy how someone can misinterpret this scenario and believe that their happiness might outweigh that of the ones who suffered for their happiness.
Now that we have established that there truly is nothing ‘unjust’ about Utilitarianism we can continue with the discussion on the just application of punishment. Bentham says when we apply punishment to an individual or group of individuals there are certain criteria that will help to justify such punishment.
The first is that we should make sure the case presented is not ‘groundless’. A case might become groundless when the accused gave consent for the typically unjust act to be performed upon him or her. It may also be groundless if it is an act that would benefit the greater good. The last quality of a groundless case is ‘certainty of adequate compensation’. This would mean that the man who performed an evil act would have to ‘compensate’ for what he has done.
This ‘compensation’ seems awfully similar to punishment to me. I believe that having this as a requirement for a groundless case is necessarily pointless. Punishment itself is a form of compensation according to the ‘retribution theory’, so why is it that Bentham would say if this compensation is performed there is no need for (further) punishment? I suppose the only difference would be if the criminal was to accuse himself, through himself in jail and serve an entire term under his own free will. If it was punishment and not compensation, I suppose the man would have done this against his own free will. This fuzzy line between punishment and compensation only goes to prove that they are one and the same, dependant on the circumstance.
The other theory besides Utilitarianism and deterrence, is that of retribution. This view in which punishment is issued not for the greater benefit of all, but because it is a ‘just desert’. Meaning that there is a kind of unsigned(some cases more literally signed...) contract when one lives in a society. To break the law is to willfully accept punishment wether you realize it or not. This theory is one that seems to have neither an end goal nor any reason for its use. To use it practically would be to assume that it is practical for a reason. The only reason presented is to balance some kind of invisible contract that never really existed.
I cannot see how retribution is not entirely pointless, lest it have a point. So one can ask themselves what the point of retribution is. In the very first sentence in Morris’s ‘Retributive Theory of Punishment’ we can see the goal of his entire theory, and also how it’s goal is just an assumption to begin with.
(Morris, 853) “My aim is to argue for four propositions... First, that we have the right to punishment, Second, that this right is derived from the fundamental human right to be treated as a person. Third, that this right is a natural and absolute right. Fourth, that the denial of this right is the denial of all other rights as well.”
To better clarify why I disagree with his claims, let me rephrase what it is that I believe he is arguing for. He is aiming to argue for four separate propositions. First, (1)that we have the right to punishment and this is derived from the fact that we (2)should be treated as people. Why? (3)Because it is natural and absolute. Why? (4)Because the denial of this right leads to the denial of all of our other rights. This to me sounds like he doesn’t want to admit he is using Utilitarian principles! The last line, “denial of all other rights as well” can be described as the realization that without punishment there would be limited(arguably none at all) rights. Meaning simply that punishment is required to deter the unjust taking of rights, which is the outcome of Utilitarianism!
He than goes ahead and says we should be treated as ‘people’. He should realize that what is at stake here is the definition of ‘people’. He may argue for what he says is the proper definition of ‘people’, but to say that people should be treated as people is no different than saying ‘an apple should be treated as an apple’.
How should people be treated? He attempts to clarify this by saying that this right is natural and absolute. Another way of putting this is this right is only correct within the given definition of ‘personhood’. I would be willing to bet that Morris would agree that ‘satisfaction of interest’(or even simply happiness) is a fundamental property of treating someone as a person. This is what I would argue in his favor, though it is only one of the many definitions of what various people have said about how a person should be treated.
What he also doesn’t seem to understand is that this ‘treating someone as a person’ is what Utilitarians attempt to give to the most amount of people at the highest possible rate. They also avoid the problem of having to explain what a person is within it’s theory, making Utilitarianism the more rationally ‘complete’ theory in comparison to Retribution Theory.
Wether one takes Utilitarianism to be flawed or not, a paradox still comes into play when dealing with the issue of punishment. Allan H. Goldman first noticed(or should I say, noticed the first) this paradox.
“The Paradox of Punishment is that a penal institution... seems from a moral point of view to be both required and unjustified.” I only have a single problem with statement. It is that the ‘moral point of view’ specified here is a point of view focused solely on the individual and not the society. Anyone can agree that the literal act of putting a man in jail is immoral. If this were the case in the entirety of the definition of punishment, than I would have to agree there is a such a paradox as Goldman claims.
The problem with the ‘paradox’ arises when we take the point of view of a society. From this perspective we can see that putting this man in jail is a just act, if it deters other acts of harm to befall people in the future. Before it was shown that putting an innocent man in jail to deter future crimes is justified when you take the perspective of a society as a whole. It seems that when this is used in offence to Utilitarianism it is used as a ‘personal, first person’ perspective. Such as the commonly held phrase, “I personally wouldn’t want to be put in jail if I were innocent.” What one must realize is that the greater society is more important than ‘I am’ for it consists of many points of view, instead of just an individual’s. If I were to make the bold statement that my point of view is more important than that of the whole of society, I would be contradicting myself, for society as a whole benefits me individually in the broader spectrum of reality. So sure, I may be miserable if I were to be thrown in jail, but if it were for the greater good I would have to agree that it must be done and humbly pack my bags and go.
The second paradox that is presented is that of Jeffery G. Murphy. He makes the claim that,
(Murphy, 869) “Retributivism... is the only morally justified theory of punishment... and that social conditions in most societies make this form of retributivism largely inapplicable within those societies.” Wether or not Retributivism is the only morally justified theory, the problems that he says exist within the societies that make such a theory inapplicable also similarly apply to Utilitarianism’s applications.
The paradox that he poses works similarly with Utilitarianism as well. The paradox is that (in his case punishment within Retributivism, but punishment just the same) punishment is given when a bond of consent is broken, and that capitalistic societies encourage the breaking of such bonds. It is true that capitalistic societies encourage people to be ‘the best’ at whatever it is they do. The problem arises when it is only possible to better oneself by committing a crime. In a capitalistic society there is necessarily an upper class and a lower class. If there wasn’t, than everyone would have to have been born in the same class, have the same brain structure and have the same job etc.. The lower class eventually becomes ‘so low’ that it requires things that it cannot acquire legally.
To overcome this paradox I believe that a small change should happen in Capitalistic society. This is; Whenever a class of people is required to steal to survive or advance in class rank, a problem that requires correction has occurred. There is obviously one of two things going on. One, is that there is not enough natural resources to be distributed to the entirety of society. Necessarily making the society one giant poor class. The second reason for ‘survival theft’ is if the other classes in the society are greedy enough to spend their natural resources on things that do not pertain to their survival and allow the poor class to simply... get poorer.
To sum up what Murphy was attempting to say about capitalism, I would like to bring in a personal quote to further prove his point.
(Copeland Middle School, NJ, USA)“Good better best. Never let it rest. Until the good gets better, and the better gets best.”
This was the chant my middle school sang at our graduation ceremony. Only now do I look back upon it and realize there was a second part to it. “Don’t worry about compassion or the people under you. Just keep looking up until your on top and maybe someday you’ll actually be on top. Until than, good luck!”
In conclusion of this paper, I would like to say that I took an empirical, rational and above all practical (‘scientific’) approach to these theories of punishment. When accepting a scientific theory as a textbook definition, a scientist sits down and looks at all the theories presented. After realizing that there is no ‘foolproof-one hundred percent’ correct theory, he judges empirically and rationally which one works most of the time. Why could this not be used to justify social and political theories as well? It seems that they all have minor flaws, just like scientific theories do(if not now, the potential always remains) The ‘flaws’ with the represented theories of punishment are as follows: (1)Utilitarianism is very hard to use practically in a society for it compiles so many variables(if not infinite). Retributivism is based on a social contract theory, which is derived from an (2)assumption that people are selfish in nature. Communism has it’s flaws within it’s (3)lack of the potential to carry our human interests freely.
When using a scientific approach, it seems that we should not only chose the one that makes the most ‘concrete logical sense’. We should take the one that is a combination of the most practical and the most reasonable. Though Utilitarianism may be impossible to carry out to it’s fullest extent, I believe it is the most rational of the theories discussed as well as that it provides a grounds to justify punishment through deterrence.
Sources:
(1)Diogenes Laertius, Lives of Eminent Philosophers, vol. II, Hicks, R. D., trans. Loeb Classical Library (Cambridge: Harvard University Press, 1991)
(2)Social and Political Philosophy, Shere, George and Brody, Baruch A., Harcourt Brace College Publishers.(Rice University, 1999)
Adam J. Gazdalski
2005'
The basis of this paper is a comparative analysis of three major views on ‘punishment’ in our society, as well as the defense of what I believe is the most rational and practical of the three. Which is Utilitarianism. The sides of Jeremy Bentham, Herbert Morris, Allan H. Goldman and Jeffrie G. Murphy will be tested both against each other as well as against hypothetical scenarios they or I have shown to either exemplify their view or stand against it. I personally have found that certain aspects of each of the theories presented have issued that should be addressed concerning both the rational behind them, as well as the practicality in front of them.
Jeremy Bentham takes the point of view of the Utilitarian, and though punishment is an ‘evil’ it must be used as a deterrent for other ‘evil’ deeds that might be committed. Herbert Morris believed that Utilitarianism has the problem of allowing the punishment of an innocent man(which I will later attempt to prove incorrect), and that retribution or the balancing of interference, was most important when dealing with the issue of punishment. Allan Goldman was the first to see that there is a paradox when the justice of punishment is analyzed for to punish alone is unjust, whilst to balance and deter unjust acts seems to require it. Murphy takes a similar point of view and agrees that there is a paradox of punishment, but it is that ‘retribution’ is the only morally justified theory and that it is our society that is what is unjust. The problem with stating that there is a paradox lies in the problem that I have with the stance taken against utilitarianism. For without the problem of ‘accusing the innocent’ that is presented in defense of views other than Utilitarianism, the ‘paradox’ that Goldman presents is no longer immanent in the justification of punishment. More simply put: “If the goal of a society is Utilitarian, than could not standing in the way of the greater good be seen as a crime in itself, worthy of punishment?”
We will begin our criticism with the definition of Utilitarianism that is sited and supported by Jeremy Bentham, as well as argued against by the following theorists.
(Bentham, 845) “The general object(utilitarianism in Bentham’s case) that all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief” Here we can clearly see Bentham’s definition of Utilitarianism, and how it is the foundation of his theory for the justification of punishment. We can also see that Bentham accepts that punishment is a form of mischief(or evil) and is only justified when it promises to exclude a greater evil from occurring.
Utilitarianism defined by Bentham is a very common definition, if not the only definition Utilitarians use to discuss issues of justice. The question one might raise with such a definition is a separate definition all together. What is this ‘happiness’ that we should have spread out in the community? Does he mean the kind of happiness related to ‘satisfaction of interest’ or is it a less specific definition of happiness? When seeing how he uses the word in his justification for punishment we can see that he most likely means ‘satisfaction of interest’ when he states ‘happiness’, so for our purposes in this paper that is what we will have to conclude for now.
Bentham than states that punishment should be ‘forward looking’. What he means by this is that it should not be seen as just a necessary evil, but it should be seen as the prevention of crime and the securing of public safety. His justification for needing such measures as prevention of crime and securing public safety stem from his Utilitarian basis. We can see now that the rest of his argument depends on the validity of its Utilitarian foundation.
Can Utilitarianism be justified? It seems to make ‘common’ sense. That is, everyone should want to have their interests satisfied(be happy), and getting the most people to have them satisfied also seems very reasonable and just. The main objection that people have with a Utilitarian view is that they say it calls upon immoral acts in order to uphold the greater happiness in certain circumstances. My objection to such an objection is simply this. The action taken is not immoral upon the grounds that in such a circumstance the greater good is more important than the unhappiness of an individual. A common example that portrays this is:
In a hypothetical town consisting of one hundred people a bank robbery takes place. The robber escapes and a mob gathers to catch the person who did it. Within this town there is a single family that is disliked by the majority of the community for whatever reason, and when the mob went out looking for a scapegoat they decided to burn down the house of the disliked family. Seeing this, the sherif realizes he needs to hang at least one person and claim they are the robber in order to stop the nonsensical burning down of the disliked but still innocent family’s house.
This example of an immoral act being used to uphold utilitarianism is one that has been used to discount utilitarianism as ‘unjustifiable’ and sometimes makes retribution look a lot more promising. What I find very interesting about this so called objection is that there is not much of a difference between hanging an innocent man in order to quell the killing of five innocents, and killing a guilty murderer to deter the murdering of five innocents. Is it really that important that the man is guilty or not guilty? Is it not more important that the specific scenario requires his death to save the lives of many others? In order to clarify this another example of an innocent man being killed to save the lives of many others needs to be addressed. This time it will entail the same circumstanced, but the man in question is not guilty:
A gang of murderers is stationed in a ‘red light’ district in a city. They all have killed before and none of them has yet to be caught, until now. The police capture a single member of the gang and bring him in for questioning. He says that he will never disclose information about his other gang members and that they will continue killing because they believe there is no reason not to. Of course this is assuming that no other man has been given capital(strict enough) punishment in the area to deter them. The jury at the caught man’s trial decides it would be best for the society as a whole to administer capital punishment in an effort to deter future murders by the fellow gang members.
This example is an even more likely scenario than the previous one that is so commonly used against Utilitarianism, and the only element that is different in the two is the fact that on one hand the man was guilty and in the other case he was not. Here I would like to make the point that unless a man is given a punishment in an effort to change his psychology, the only other purpose for punishment that has any bearing on the ‘bettering of society’ is deterrence, and that is exactly what Utilitarianism attempts to do! There is one more example worth discussing when it comes to the deployment of Utilitarianism in a society.
In this final example an African American man lives in a town with a majority of racist Caucasians in the deep south. According to the Utilitarian principles the white majority marches on the mayors house and demands that Jim Crow laws be placed back into effect. If they were to be put back into effect, it can be argued that the (assumed racist...) white majority in the town will experience much happiness and the small black population will be ‘out weighed’ in happiness so to speak. The problem with this example being used as an opposition to Utilitarianism is that it is not a proper use of the theory!
If the mayor was to reenact the Jim Crow laws, this would have so many negative consequences that would hinder the happiness of the whole population that they are almost uncountable. Sure it may look on the surface that the white majority is ‘happier’, but are they truly ‘happier’ than the black minority are ‘sad’?
Referring to Epicurus’s Ethics:
(Ataraxia, DL VII, 128) “The aim of the blessed life is the bodies health and the soul’s freedom from disturbances.” Epicurus as well as many other philosophers(as well as modern day psychologists and psychiatrists) establish that there are different values of happiness attributed to actions. In the case of the racist community we should establish what kind of happiness the white racists were experiencing and than weigh it against the amount of pain the small black minority was experiencing. The question now is how can we tell which acts show the strongest amount of happiness, and if the racists experience anything like that when the Jim Crow laws were enforced.
To help with this question it would be helpful to refer to the Stoic doctrine on happiness:
(DL VII, 88) “The possessing and exercising virtue is (truest, deepest and strongest) happiness.” Obviously the white racists in the argument did not participate in any virtuous activity when they reinforced the Jim Crow laws. As a matter of fact they participated in an act as far from being virtuous as one can imagine. This would have to mean that the quality of the happiness they experienced was on such a low level that it couldn’t possibly outweigh that of the pain suffered by the black peoples in the community. More simply put, the racists had ‘a lot of something’ that had very little value on its own. It is easy how someone can misinterpret this scenario and believe that their happiness might outweigh that of the ones who suffered for their happiness.
Now that we have established that there truly is nothing ‘unjust’ about Utilitarianism we can continue with the discussion on the just application of punishment. Bentham says when we apply punishment to an individual or group of individuals there are certain criteria that will help to justify such punishment.
The first is that we should make sure the case presented is not ‘groundless’. A case might become groundless when the accused gave consent for the typically unjust act to be performed upon him or her. It may also be groundless if it is an act that would benefit the greater good. The last quality of a groundless case is ‘certainty of adequate compensation’. This would mean that the man who performed an evil act would have to ‘compensate’ for what he has done.
This ‘compensation’ seems awfully similar to punishment to me. I believe that having this as a requirement for a groundless case is necessarily pointless. Punishment itself is a form of compensation according to the ‘retribution theory’, so why is it that Bentham would say if this compensation is performed there is no need for (further) punishment? I suppose the only difference would be if the criminal was to accuse himself, through himself in jail and serve an entire term under his own free will. If it was punishment and not compensation, I suppose the man would have done this against his own free will. This fuzzy line between punishment and compensation only goes to prove that they are one and the same, dependant on the circumstance.
The other theory besides Utilitarianism and deterrence, is that of retribution. This view in which punishment is issued not for the greater benefit of all, but because it is a ‘just desert’. Meaning that there is a kind of unsigned(some cases more literally signed...) contract when one lives in a society. To break the law is to willfully accept punishment wether you realize it or not. This theory is one that seems to have neither an end goal nor any reason for its use. To use it practically would be to assume that it is practical for a reason. The only reason presented is to balance some kind of invisible contract that never really existed.
I cannot see how retribution is not entirely pointless, lest it have a point. So one can ask themselves what the point of retribution is. In the very first sentence in Morris’s ‘Retributive Theory of Punishment’ we can see the goal of his entire theory, and also how it’s goal is just an assumption to begin with.
(Morris, 853) “My aim is to argue for four propositions... First, that we have the right to punishment, Second, that this right is derived from the fundamental human right to be treated as a person. Third, that this right is a natural and absolute right. Fourth, that the denial of this right is the denial of all other rights as well.”
To better clarify why I disagree with his claims, let me rephrase what it is that I believe he is arguing for. He is aiming to argue for four separate propositions. First, (1)that we have the right to punishment and this is derived from the fact that we (2)should be treated as people. Why? (3)Because it is natural and absolute. Why? (4)Because the denial of this right leads to the denial of all of our other rights. This to me sounds like he doesn’t want to admit he is using Utilitarian principles! The last line, “denial of all other rights as well” can be described as the realization that without punishment there would be limited(arguably none at all) rights. Meaning simply that punishment is required to deter the unjust taking of rights, which is the outcome of Utilitarianism!
He than goes ahead and says we should be treated as ‘people’. He should realize that what is at stake here is the definition of ‘people’. He may argue for what he says is the proper definition of ‘people’, but to say that people should be treated as people is no different than saying ‘an apple should be treated as an apple’.
How should people be treated? He attempts to clarify this by saying that this right is natural and absolute. Another way of putting this is this right is only correct within the given definition of ‘personhood’. I would be willing to bet that Morris would agree that ‘satisfaction of interest’(or even simply happiness) is a fundamental property of treating someone as a person. This is what I would argue in his favor, though it is only one of the many definitions of what various people have said about how a person should be treated.
What he also doesn’t seem to understand is that this ‘treating someone as a person’ is what Utilitarians attempt to give to the most amount of people at the highest possible rate. They also avoid the problem of having to explain what a person is within it’s theory, making Utilitarianism the more rationally ‘complete’ theory in comparison to Retribution Theory.
Wether one takes Utilitarianism to be flawed or not, a paradox still comes into play when dealing with the issue of punishment. Allan H. Goldman first noticed(or should I say, noticed the first) this paradox.
“The Paradox of Punishment is that a penal institution... seems from a moral point of view to be both required and unjustified.” I only have a single problem with statement. It is that the ‘moral point of view’ specified here is a point of view focused solely on the individual and not the society. Anyone can agree that the literal act of putting a man in jail is immoral. If this were the case in the entirety of the definition of punishment, than I would have to agree there is a such a paradox as Goldman claims.
The problem with the ‘paradox’ arises when we take the point of view of a society. From this perspective we can see that putting this man in jail is a just act, if it deters other acts of harm to befall people in the future. Before it was shown that putting an innocent man in jail to deter future crimes is justified when you take the perspective of a society as a whole. It seems that when this is used in offence to Utilitarianism it is used as a ‘personal, first person’ perspective. Such as the commonly held phrase, “I personally wouldn’t want to be put in jail if I were innocent.” What one must realize is that the greater society is more important than ‘I am’ for it consists of many points of view, instead of just an individual’s. If I were to make the bold statement that my point of view is more important than that of the whole of society, I would be contradicting myself, for society as a whole benefits me individually in the broader spectrum of reality. So sure, I may be miserable if I were to be thrown in jail, but if it were for the greater good I would have to agree that it must be done and humbly pack my bags and go.
The second paradox that is presented is that of Jeffery G. Murphy. He makes the claim that,
(Murphy, 869) “Retributivism... is the only morally justified theory of punishment... and that social conditions in most societies make this form of retributivism largely inapplicable within those societies.” Wether or not Retributivism is the only morally justified theory, the problems that he says exist within the societies that make such a theory inapplicable also similarly apply to Utilitarianism’s applications.
The paradox that he poses works similarly with Utilitarianism as well. The paradox is that (in his case punishment within Retributivism, but punishment just the same) punishment is given when a bond of consent is broken, and that capitalistic societies encourage the breaking of such bonds. It is true that capitalistic societies encourage people to be ‘the best’ at whatever it is they do. The problem arises when it is only possible to better oneself by committing a crime. In a capitalistic society there is necessarily an upper class and a lower class. If there wasn’t, than everyone would have to have been born in the same class, have the same brain structure and have the same job etc.. The lower class eventually becomes ‘so low’ that it requires things that it cannot acquire legally.
To overcome this paradox I believe that a small change should happen in Capitalistic society. This is; Whenever a class of people is required to steal to survive or advance in class rank, a problem that requires correction has occurred. There is obviously one of two things going on. One, is that there is not enough natural resources to be distributed to the entirety of society. Necessarily making the society one giant poor class. The second reason for ‘survival theft’ is if the other classes in the society are greedy enough to spend their natural resources on things that do not pertain to their survival and allow the poor class to simply... get poorer.
To sum up what Murphy was attempting to say about capitalism, I would like to bring in a personal quote to further prove his point.
(Copeland Middle School, NJ, USA)“Good better best. Never let it rest. Until the good gets better, and the better gets best.”
This was the chant my middle school sang at our graduation ceremony. Only now do I look back upon it and realize there was a second part to it. “Don’t worry about compassion or the people under you. Just keep looking up until your on top and maybe someday you’ll actually be on top. Until than, good luck!”
In conclusion of this paper, I would like to say that I took an empirical, rational and above all practical (‘scientific’) approach to these theories of punishment. When accepting a scientific theory as a textbook definition, a scientist sits down and looks at all the theories presented. After realizing that there is no ‘foolproof-one hundred percent’ correct theory, he judges empirically and rationally which one works most of the time. Why could this not be used to justify social and political theories as well? It seems that they all have minor flaws, just like scientific theories do(if not now, the potential always remains) The ‘flaws’ with the represented theories of punishment are as follows: (1)Utilitarianism is very hard to use practically in a society for it compiles so many variables(if not infinite). Retributivism is based on a social contract theory, which is derived from an (2)assumption that people are selfish in nature. Communism has it’s flaws within it’s (3)lack of the potential to carry our human interests freely.
When using a scientific approach, it seems that we should not only chose the one that makes the most ‘concrete logical sense’. We should take the one that is a combination of the most practical and the most reasonable. Though Utilitarianism may be impossible to carry out to it’s fullest extent, I believe it is the most rational of the theories discussed as well as that it provides a grounds to justify punishment through deterrence.
Sources:
(1)Diogenes Laertius, Lives of Eminent Philosophers, vol. II, Hicks, R. D., trans. Loeb Classical Library (Cambridge: Harvard University Press, 1991)
(2)Social and Political Philosophy, Shere, George and Brody, Baruch A., Harcourt Brace College Publishers.(Rice University, 1999)
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