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Usually when someone does something bad they get punished. There are a few reasons for this, e.g. Them not doing it again or other people not doing in the first place. I was wondering if there is a reason for punishments to be fair and just.

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  • See Legal Punishment: "Legal punishment presupposes crime as that for which punishment is imposed, and a criminal law as that which defines crimes as crimes; a system of criminal law presupposes a state, which has the political authority to make and enforce the law and to impose punishments. A normative account of legal punishment and its justification must thus at least presuppose, and should perhaps make explicit, a normative account of the criminal law and of the proper powers and functions of the state ." Jun 28 at 11:40
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    "Is there any moral reasoning behind punishment?" "Them not doing it again or other people not doing in the first place" - It seems like you've already answered your own question. Or are those not moral reasons in your opinion? And, if so, what would you consider to be a moral reason?
    – NotThatGuy
    Jun 29 at 11:09
  • @NotThatGuy Yes, in a sense I did answer my own question. But I wanted to know why it might be fair to punish a person; if there were a reason to punish them if there would be no risk of them commiting a crime again. Jun 29 at 12:51
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    @NotThatGuy I think the question has more depth than that. "You rode the bus without a ticket, so I shoot you and your family" would indeed prevent people from riding buses without tickets. However, in many (most?) countries this is not considered a fair and just punishment, pointing for the need for a deeper underlying (moral) theory.
    – Cort Ammon
    Jun 30 at 14:51
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Plato has Socrates make the argument that punishment, when it is just anyway, actually improves the individual. So if you’ve done wrong you should want to be punished so you can improve. To say the least this doesn’t track with a common understanding of human nature — but nevertheless the theory of virtue has been very influential. For something more modern in this vein maybe consider Foucault’s Discipline and Punish; or for a more literary-analytical approach, perhaps consider Deleuze’s book on Masoch, or Lacan’s essay in Ecrits on Kant and Sade, both of which could also be useful starting-points there.

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  • Was just thinking I should have mentioned Foucault! I remember finding it a good read..
    – CriglCragl
    Jun 28 at 17:33
  • Of course it depends what you call improvement of a person. What are improvements according to Plato and Aristotle? Jun 30 at 20:07
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    @DescheleSchilder if you’d like to frame that as a new question I think it could be worth unpacking for sure!
    – Joseph Weissman
    Jul 1 at 13:58
  • @Deschele Schilder: Not sure what they'd have said (though I do know they had various schemes regarding what a "virtuous person" was - likely, then, it'd be something like "to be more like that"), but I'd say that in regard to the idea itself, it's quite simple: in this case, improvement means becoming less liable to repeat the act which invited the punishment. Oct 4 at 21:07
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There are 2 main justifications for punishment used in modern philosophy.

Consequentialism
The idea is that punishing criminals deters them and others from doing crimes in the future. One of the strongest proponents of this stance was the utilitarian Bentham, who did a lot for prison and legal reforms in his own society.

Retributivism
'What goes around comes around,' is a saying that means that people who perform bad actions have bad events happen to them. The retributivist believes that it is the moral obligation of society to make sure these bad events happen i.e. punish people who do wrong. Although Kant is the best known philosopher who advocated this view, the concept of karma is pervasive in modern society.

Retributivism seems to be what you are looking for, but it is important to note that these are two sides of a continuum, with many philosophers taking a position somewhere between the two extremes.

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    Thanks a lot. I think this definetly points me in the right direction. Jun 29 at 12:46
  • This is also the Talmudic principle of "an eye for an eye"
    – Barmar
    Jun 30 at 15:15
  • This verse does not provide a justification for why punishment is necessary. Rashi's commentary on Shemos Chapter 21 (chabad.org/library/bible_cdo/aid/9882/showrashi/true/jewish/…) makes it is clear that the passage refers the the principle of proportionality i.e. the severity of the punishment should be in proportion to the severity of the crime. Although this is a very important concept, it is irrelevant to the question asked.
    – E Tam
    Jul 1 at 3:25
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One can make the case for the need to compensate the injustice of the wrong-doer having an advantageous position with respect to the victim of the harm if no punishment is applied.

A possible justification rooted on human psychology can be based on the additional harm caused by the unsatisfied revenge feeling that can be assumed to bother the victims or other observers (since the thirst for revenge can have a strong empathy element). This leads to dispositions were the last word is given to the victim (or a suitable representative) as to whether the punishment should be applied or not, once the usual additional benefits of punishment are ruled out (negative incentives, rehabilitation, etc.). 'Mercy' would be the virtue by which one decides not to take revenge in these circumstances, a type of generosity and also a sign that one shows genuine (possibly universal) sympathy towards their peers, since taking revenge would be acceptable and there is no need to spare the wrong-doer (obviously other, higher-order deceit strategies could still be at play in this case).

The usual euphemism for the feeling I am referring to is the desire for justice.

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  • thanks! This is a great insight. I appreciate it a lot! Jun 29 at 12:38
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A reason? Implying, from outside of moral reasoning? Or like, using intersubjectivity reasoning, which resulted in the end of feudal bloodline/racist governance, ideas like universal citizenship, and adoption of catch phrases like "All human beings are born free and equal in dignity and rights" in the Universal Declaration of Human Rights?

You can look to game theory: Is the tyrannicide perpetrated by William Tell morally legitimate? And I'd argue this can explain the end of indenture, serfdom, debt & chattel slavery, colonialism, and segregation & apartheid. They became intrinsically unstable, in the face of technology replacing human labour, & the requirement for educated workers. You can look at it as an r/K reproductive strategy shift, from large numbers of offspring to fewer with much more investment also, and a requirement for greater wealth & knowledge distribution for that investment to be possible, with societies displacing or reorganising countries that fail to adopt the new strategies - just like previous waves of social & technological change.

You can note that in general capacity to cooperate with other humans is an individuals greatest resource: What ethical philosophy can decide between me eating or not? Again cooperation gives everyone in extremis more chance to survive, & avoids a lose-lose fight. Chimps require a ruler to have a supportive core team, vs gorillas where it's the strongest individual - and humans are far weaker individually than either. There's the detailed quantified arguments by economists Wilson & Pickett, in 'The Spirit Level: Why More Equal Societies Almost Always Do Better' & 'The Inner Level: How More Equal Societies Reduce Stress, Restore Sanity and Improve Everyone's Well-being', too.

There's a cross-culturally stable low percentage of psychopaths, who haven't inherited or developed the internal mechanisms that keep people acting ethically even against their interests & when they will face no (direct/immediate) consequences. Some jobs benefit from these traits, like being a surgeon. Company executives are more likely than average to have psychopathic traits, but at cost to the businesses they run. See Jon Ronson's book 'Strange Answers to the Psychopath Test', and Ted Talk of the same name, for the data.

TLDR: Intersubjectivity underpins our communication & collaborative intelligence, through treating others as like ourselves. That requires justice & fairness to be sustained, or instabilities happen that can destroy the whole social structure (eg fall of Rome, quality of life of citizens not matched anywhere for around 1500 years).

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    Being a surgeon benefits from psychopathic traits?
    – TKoL
    Jun 29 at 16:31
  • @TKoL: en.wikipedia.org/wiki/Psychopathy_in_the_workplace See 'The Wisdom of Psychopaths: What Saints, Spies, and Serial Killers Can Teach Us About Success', Dutton. Look at clinical definition of a (functional) psychopath, sounds pretty much like cliche of a surgeon. Resistance to burnout due to stress, responsibility, & failures, are v key not only to disproportionate psychopaths being surgeons, but it actually helping (unlike with CEOs, the job with most disproportionate number of psychopaths of all). I see it as a neurodiversity issue, for society to harness & manage these traits
    – CriglCragl
    Jun 29 at 21:24
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I will present a not well-known but classical argument that is often ingrained into our current judicial systems. The argument is underdeveloped in Kant's philosophy of right and later fully developed by Fichte.

Fichte argues in his Foundations of Natural Right that legal punishment is, in a sense, a fulfillment of the original intention of a rational perpetrator.

Outline of the argument

If the perpetrator acts rationally, they know that what they do is wrong. If they nevertheless realize the immoral intention fully knowing that it is wrong, they also know that the moral thing would be not to do it or at least even out that wrong. These considerations have to be assumed to be present (or possible) as part of a rational perpetrator's intention/volition. Accordingly, this action can and should be followed by some kind of corrective action in accordance with the perpetrator's own intention/volition. Even worse, not punishing them would, the argument continues, reject them the recognition as a rational/moral agent. It would mean they lose any chance to reach what they cannot reach by themselves - a moral conclusion. Even if they "cannot" act good, they still want to bring about a moral state, so it is on us to do so.

Modern legal practice

This is pretty close to how most legal systems act in practice these days: If the perpetrator is irrational, ie. criminally insane, or the intention did not include certain unforeseeable consequences, or they are too young to have comprehended the consequences of their doings, these people can not be punished for those things that they could not comprehend or possibly foresee. For example, someone who has a distorted conception of good, ie. who really thinks what they've done is good while they've committed atrocities, will rather be considered pathological, ie. criminally insane, rather than be fully punished for what they've done.

In short: We only punish those who are able of moral considerations, which in turn means that a punishment is, in a sense, also the recognition of a perpetrator as a moral agent whose intention/volition at least could have involved all relevant moral considerations.

Rephrasing and summary

The moral reason for legal punishment is that if the perpetrator is a moral agent, ie. someone who acts (rationally?! - loaded word) considering good and bad, their intention/volition will involve moral considerations. They fully know but are unable to enact what is good. Therefore, we, as a moral community, only recognize them as moral agents by taking corrective measures, fulfilling their (to some part moral) intention to the full extent.

This theory does not necessarily stand in conflict with the classical theories of legal punishment because it does not lay out by which mechanism the measures are thought to be corrective. It is on a more abstract level.

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  • Thanks, this is a great answer! Jun 30 at 19:42
  • A rational perpetrator? What the hell is Fichte tal(k)ing about? Do you really think these exist in the real world? Maybe in the totally abstract thinking of Fichte... Jun 30 at 20:12
  • @DescheleSchilder The question asked for moral reasoning in favour of punishment, this is a locus classicus for such a reasoning. At no point did I personally endorse any of the content. Please do not let your personal belief or feelings cloud your judgement here.
    – Philip Klöcking
    Jun 30 at 20:17
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You already have the reasons for punishment in the first place, to discourage repetition/imitation of a bad action.

So what is the reason to have "fair and just" punishment? Because humans generally have a strong desire for fairness and justice, especially when it pertains to them personally, as well as desiring order and safety. So having laws, and punishments for those that break the law, appeals to the latter desires, and having laws that are deemed fair and just by society also appeals to those desires.

Imagine you lived in a world without codified laws and where punishments for breaking them were sadistic and cruel.

Would you feel a sense of order or safety knowing that at any moment of any day you could just be going about your life and a unit of armed soldiers could show up, claim that scratching your nose was illegal that day, take you away in chains and throw you in a dungeon to be tortured to death? Or would you live in fear and anxiety?

You would not feel order or safety in a world with no laws where malicious people could run around committing terrible acts against innocent people without any kind of punishment either. You would live in fear and anxiety there too.

If you were accused of breaking the law, you would want a fair and just system, where you could clear your name. Again this gives you a sense order and safety.

Even if you committed a crime you would want the punishment to be fair and just, not because you desired order and safety (or else you wouldn't have committed the crime in the first place), but out of selfish interest, so that even though you might be punished, the punishment will not be cruel and unusual.

So having fair laws and just punishments is important to keeping order and safety in society.

In a broader picture fairness and justice are not very important at all. "Mother Nature" is hardly fair or just. Stupidity, poor judgement and physical weaknesses are often met with death in the realm of Nature.

Look at a mousetrap; is it "fair" that a mouse gets killed just because it wants to fulfill a basic need for food? No. But it isn't fair that you should have to put up with destructive rodents chewing holes in your walls, eating your food and spreading filth and germs in your house either. Your desires and the mice's desires are opposed. So what happens? Since you are the more intelligent and more powerful creature you win. And you get rid of the mice. And that is Nature's way, not fair or just.

Justice and fairness are part of human society and important to maintaining human society, but also mostly confined to human society.

I guess the reason is that it's part of what makes us human.

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  • I feel like a lot of the things you said in this answer had hardly anything to do with the question, but thanks anyway. Jun 29 at 12:44
  • @porcupinepaul I disagree. Given your question, “Is there any moral reasoning behind punishment?” I think they made a decent attempt at giving you some obvious moral reasoning: primarily “to discourage repetition/imitation of a bad action” with the follow-up proviso that the punishment should fit the crime (which wasn't always the case historically, and continues not to always be the case nowadays.) You can't dictate the sort of answers you want. If you want different sorts of answers, ask a different question.
    – igravious
    Jun 29 at 15:40
  • @igravious yes some parts were relevant. But I don‘t see what the fairness of a mouse trap has to do with it. Jun 30 at 19:35
  • @porcupine paul Because humans mainly care about fairness & justice only when it concerns other humans, & a concern for fairness & justice is an innate human desire. The reasoning then? Fairness & justice are needed to operate human society. As opposed to animal society which operates mainly on physical dominance. A wolf killing a rabbit isn't a fair act, but we don't consider the wolf a murderer or evil for doing it, they're just animals. We hold ourselves above animals, without things like fairness & justice to define our society, we're no better than animals, & we'd act exactly like them. Jun 30 at 23:17
  • @Shojo Dagger I know that fairness and justice are important. I was wondering why punishments are fair and just. Jul 4 at 15:18
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On the simplest level, punishment is a natural social desire for balance and empathy. If someone punches you in the arm, you punch them in the arm; if someone takes your shovel, you take it back. That way the other person immediately feels the pain and deprivation you felt, and (ostensibly) comes to understand your feelings as their own. There's a certain amount of transferability, of course. If a child breaks a window, we don't normally break one of the child's windows; instead we punish children in ways they understand, so that they get a proportionate sense of pain or deprivation that will give them a grasp on how we feel.

Of course, the real world is rarely that simple, and all sorts of things can throw this dynamic out of whack:

  • Some events cause so much pain that it is difficult to find a proportional punishment that will lead to
  • Some people (through an unfortunate twist of nature, poor nurturing, or toxic social environments) find empathy difficult:
    • such people (when they do wrong) cannot accept punishment as a moment of balance and self-reflection, but see it merely as a wrong done against them without cause
    • such people (when they are wronged) are not satisfied by balanced punishment, and seek to inflict endlessly greater amounts of punishment on those who wronged them
  • Some situations are so alienated and distanced that punishment stops being an effort to reach empathetic understanding, and instead becomes a performative act meant to display political, social, or religious ideals.

In those cases we generally find people — not the wronged or the wrong-doer, but the others around them in society — reaching for concepts like fairness, justice, moral/ethical rigor, universality, and the like. These abstract concepts are meant to set measures and boundaries on how much punishment is appropriate to achieve the desired state of empathetic understanding, and then impose these measures and boundaries on those who are incapable of seeing or applying them. Societies don't often live up to such abstract concepts, obviously, but a society that lacked such abstractions would not remain a society for long, but would collapse into anarchy and clan feuds.

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The community applying punishment limits the potential for revenge.

This indirectly implies the punishment is fair otherwise the aggrieved party would still want further revenge.

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