Sobre la justificación moral de las acciones. El tema del castigo

Abstract

It would be philosophically inadequate to consider that there is just one problem involved in the practice of punishment and, therefore, just one answer to search for. In fact, punishment gives rise to many problems, and it is necessary to appeal to various criteria in order to solve them. However, we cannot deny the possible existence of a common motivation which is at the root of all the difficulties concerning the practice of punishment.
The deprivation of life, of freedom, of material wealth, are evils that in normal situations deserve our moral disapproval. But why should an act, which seems to be the same as another, deserve in one case moral disapproval and in some other, justification or at least the withholding of moral judgement? The answer prima facie could be that such an act is morally justified because A punishes B because B did something he ought not have done. This would be different than when A beats B just because it pleases him. In the first case A’s act would be punishment of an offender, in the second it would be an offense. But if B has committed an offense, and punishing B implies inflicting an “evil” upon him, the difficulty is still there; it seems unjustifiable to produce an “evil” just because another “evil” has taken place. The moral justification of punishment and of all the questions surrounding this topic can be regarded as a refinement of the discussion concerning the moral justification of actions in general.
The following section of this paper states two traditional views about punishment: Retributionism and Utilitarianism. The third section deals with three different approaches to the same problem which pretend to overcome the difficulties in reconciling the above mentioned opposing views. The last section considers an interesting family of problems which must be taken into account in any serious treatment of punishment.
Retributionism is principally based on the thesis that punishment inflicted upon a man is morally justified because that man is guilty, i.e., has committed an offense. What follows logically from any Retributionist view is that if punishment is justified because of the offender’s guilt, then the severity of the punishment must correspond exactly to the graveness of the offense. This gives rise to the problem of offering the adequate criteria to calculate the just punishment according to the graveness of the offense.
According to Utilitarianists, if one wants to give an adequate moral justification of punishment, one must look into the future and not into the past; the only way of justifying punishment is by taking into account the valuable consequences that can be derived from its application. Punishment can be applied in order to produce an improvement in the offender, or it can be justified as a means to prevent possible repetition of the offense in the future. Utilitarianism has an answer to the problem of how to calculate the just punishment according to the graveness of the offense: the severity of the punishment must be such that it is not to the offender’s advantage to commit the transgression and receive the punishment, or it must be such that the punishment achieves its aim.
Retributionists have an objection against Utilitarianism: if punishment is considered morally justified because of its consequences, then it would be justifiable to punish an innocent if one is certain that the desired consequences would be produced. Moreover, they argue that Utilitarianists make no distinction between punishment properly speaking and other “external” factors (threats, publicity, psychiatric treatment, etc.), and therefore, their claim to justify punishment by its consequences is mistaken.
Utilitarianists also raise strong objections against the Retributionist point of view. Their contention is that Retributionism seems to imply the unjustifiable thesis that punishment is valuable in itself. Punishment can be regarded as the rationalization of the desire for revenge that the offended feels toward the offender. It could also be questioned whether, on one hand, guilt is the only relevant thing to take into account when a punishment is applied, and on the other, whether the punishment given the guilty is always morally justified. Concerning the difficulties involved in the question of how to establish the adequate punishment for any offense, the Utilitarianists raise another objection against Retributionism: either it is impossible to accurately determine the right proportion, or it would only be possible to do so taking into account the valuable (Utilitarianist) consequences that would be derived from the application of the punishment.
At this point of the analysis there are no adequate criteria to decide in favor of one view or the other, as we do not see clearly enough what are the problems to be solved. The expression “morally justify punishment” covers too many things, and so it cannot help to outline the borders of the discussion. However, there are some questions that now we can state:
Do Retributionism and Utilitarianism try to answer the same questions concerning punishment? The first difference (and a trivial one, perhaps) that can be noted between these two vies is that Retributionism seems to be asking why we punish, whereas Utilitarianism is asking for what purpose do we punish. If the questions are different it is obvious that the answers will also be different. If we ask someone “Why do you do p?”, the answer must necessarily make reference to a past action or past fact which is in some way connected with p. If the questions is “For what purpose do you do p?”, the answer will make reference to a fact of the future, i.e., to the consequences that the agent is trying to produce upon carrying out p. It would follow that: (a) there is no real theoretical opposition between Retributionism and Utilitarianism, (b) since the two views have a certain degree of acceptability, one can admit that their answers are both correct simultaneously, (c) the basic mistake of both positions lies in their contention that their view offers the moral justification of punishment, (d) it would be possible perhaps to integrate both positions into a single general theory of punishment. But these consequences are not acceptable since the original premise is not admissible. The fact that each position gives different answers to the problem of morally justifying punishment does not follow from the trivial fact that they state different questions before the same problem but rather from the fact that they adopt different theoretical positions before the problem of the moral justification of an action. According to the Utilitarianists, punishment, like any other human activity with a moral quality, can only be justified by its consequences. Retributionism, on the other hand, considers that the justification can only be sought in facts of the past, including the intention of the agent. Therefore they each formulate such questions as they consider to be the kind of questions that must be stated before that kind of problem.
It must be noticed that the distinction we have traced between “Why is B punished?” and “For what purpose is B punished?” is not clear-cut. It has some exceptions. “Why do you do p?” is a question that can be answered by making reference either to an act of the past or to an act of the future; it is therefore an ambiguous question. Thus it is hard to determine the criteria to be used in order to distinguish between the two kinds of questions which are basis of the dispute.
Let us try another way of overcoming the opposition between Retributionists and Utilitarianists. Do they give a solution to the same problem, in the sense that both of their theses can be considered to belong to the same philosophical compartment? A negative answer would require a much more complicated formulation of the problem. The strongest objection of Retributionists against Utilitarianists is that the latter’s view could not exclude the possibility of justifying punishment of an innocent. Now, they claim it seems logically impossible to punish someone who has not committed an offense. Being guilty is a necessary condition for being punished. Therefore it would be logically absurd to speak of punishment inflicted upon an innocent. Punishment is punishment only when it is deserved, otherwise it would be only an injustice, a crime. All this is in accordance with the standard use of the word “punishment” or of expressions such as “A punishes B”.
This attempt to overcome the opposition between the two views we are considering could yield some consequences. First of all, it would be obvious that Retributionists give a local answer, i.e., they try to clarify the meaning of the term “punishment” or the conditions of the correct application of such expressions as “A punishes B.” Utilitarianism, on the other hand, would be giving an answer of ethical character: the attempt to morally justify punishment. Secondly, it might provide a distinction between two different aspects of the phrase “the moral justification of punishment”, a conceptual one and an ethical one. Thirdly, it could result that some sentences used in ordinary contexts are absurd. Finally, the criticism against Utilitarianism would loose all of its support, since it would be logically impossible to punish an innocent.
However, there is a possible objection to this view: in point of fact, there are cases of corrupt judges or sadistic people who know that an accused is innocent and still decide to inflict punishment on him. There is also the possibility of making a mistake concerning the culpability of the accused. In these cases it would make perfect sense to say “A was punished even though he was innocent”. This objection could be met by replying that the linguistic usages supporting the objection are in fact confused, i.e., that there is a confusion in ordinary usage between (a) using “punishment” to refer to the action of inflicting suffering upon a guilty person, and (b) using “punishment” to refer to the mere action of inflicting suffering on anyone. However, this reply will not suffice since it presupposes that the only criterion for the correct usage of “punishment” is precisely the one according to which it would be absurd to say “A was punished even though he was innocent”. This would be a question-begging device.
Retributionists can still strike back. For this purpose they must admit that it is necessary to give a moral justification of punishment. They have three possibilities open for stating their thesis in a new way: (1) They can offer a version of their view according to which the concepts of guilt and punishment are not explicitly linked together, but where such a link appears in the form of a recommendation concerning the use of “punishment”. (2) They can distinguish between the situation of someone who receives a suffering because, in point of fact, he is guilty, and that of someone who has simply been declared guilty. Thus the expression “A was punished for something he did not do” would not be incompatible with a Retributionist view according to which the only necessary condition to meaningfully use the above statement is that A has been declared guilty. (3) It can be distinguished between a “strong” sense and a “weak” sense in such expressions as “A was punished for something he did not do”. In its strong sense, the expression would be self-contradictory whereas in its weak sense it would not. (However, it would be possible to show that such an expression is deprived of meaning in its strong sense.)
This new attempt to reconcile the differences between Retributionism and Utilitarianism has not been fully successful. Let us consider a third question concerning the two opposing views. Do they both take into account the same kind of phenomena or process? We must distinguish between two different ways of considering punishment: as an individual act and as an established social practice. Therefore one can attempt to justify punishment in two different ways: by justifying the fact that A punishes B because he did p, or by justifying suffering inflicted upon someone who has committed an offense because it is a practice accepted within a social group. Now we can answer the question. It seems that Retributionism and Utilitarianism do not take into account the same phenomena or process. When Utilitarianists maintain that punishment can only be justified on the grounds that the offender is guilty, they are considering punishment as the result to the application of a general rule to a particular case. Thus, the opposition between these two groups seems to dissolve as a consequence of a conceptual refinement that generally has been overlooked. Another important consequence is that the objection against Utilitarianism, in the sense that it makes possible the justification of punishment of innocents, can be overcome. Once the theoretical claims of this view are limited to the moral justification of punishment as a social practice, the grounds for the objection disappear. Retributionism, on the other hand, can validate its attempt to morally justify punishment in those cases of particular applications of punishment.
But it is not possible that Retributionists will again raise their objection against Utilitarianists, in the sense that they can still morally justify institutionalized punishment (valuable by its consequences) inflicted upon an innocent person? The answer is no. According to Utilitarianism there would not be any valuable consequence if this were the case, and therefore it would be impossible to give any Utilitarianist justification for such a “practice of punishment”.
Even if one recognizes the theoretical importance of the above mentioned distinction between the justification of punishment as a social practice and as an individual act one can still question, among other things, what is the content and theoretical value of a Utilitarianist justification in general. In short, one can demand an adequate explanation to Utilitarianists of the distinction they propose, and as a last resort, of the moral theory they maintain. So, prima facie, this last approach also fails to overcome the opposition between the two views.
The critical contrast that has been offered between Utilitarianism and Retributionism does not yield sufficient criteria to decide in favor of either of them. The three approaches we have considered in order to overcome the opposition are all subject to criticisms. However, we have sufficient elements to assert that the reason for this opposition is a mistaken point of departure. Among the assumptions basic to both theories, the most important and pernicious is the idea that there is just one problem involved in any treatment of punishment, and, therefore, there must be just one answer to such a problem.
Once we have come to this conclusion, it would have only relative value were we not to offer — or at least sketch — an alternative way of approaching the problem. Punishment involves a variety of factors that cannot be easily included within a unitary answer. At the first stage we must enumerate a series of topics connected with punishment but not necessarily related among themselves (at least prima facie) and try to see what their real content is. Secondly, it would be necessary to analyze those topics. In what follows we shall try to reach just the first stage.
The Spanish Dictionary of the Royal Academy defines “punishment” as a “penalty inflicted upon someone who has committed a fault or an offense”. “Penalty” in turn is defined as “punishment imposed by a legitimate superior or someone who has committed a fault or an offense”. According to Flew, the definitory characteristics of “punishment” are: (a) a penalty must be inflicted on someone, (b) the penalty must be inflicted because an offense has been committed, (c) it must be inflicted upon the offender, (d) it must be the result of a human action, and (e) it must be imposed by an authority of the institution whose laws or rules have been broken. This gives the standard use of the word “punishment”.
There are two philosophical problems that may arise from this definition of “punishment”. Must it be restricted just to legal offenses or must it also be extended to moral ones? There is a disagreement concerning this question, and its discussion is connected to the question of whether one can legitimately speak of moral sanctions. The second problem is related to the first one: if we lose the criterion to determine the nature of the offense, then the possibilities of correct usage of the word “punishment” would be multiplied. But, obviously, there are cases in which the word is applied although it does not seem to fit the conditions that determine its standard use.
It now seems clear that when one attempts to face the problem of the moral justification of punishment, one must distinguish between justification and definition, and between justifying individual actions and justifying social practices. Although these distinctions do not establish the criteria for the moral justification of punishment they call attention to aspects that must be carefully distinguished before giving any moral justification. The problem of establishing such criteria is still there.
We have previously noticed that there is a relation between the moral justification of punishment as offered by Retributionists and Utilitarianists, and the kind of moral doctrine underlying them. The problem of moral justification seems intimately connected with that of the description of the different kinds of moral theories. Thus the problem would seem to be reduced to that of finding the criteria to decide in favor of one or the other theories. It can also be suggested that the expression “moral justification” can have different meanings according to the theory in which it is used.
There are some other important problems which arise from the family of concepts to which punishment seems to belong. Guilt, responsibility, and pardon are among these concepts. Another problem is that of the existence of punishment as a social practice. The question is not its justification, but rather asking for the conditions which make it possible and the examination of its possible eventual disappearance. A discussion of these topics would require a previous empirical investigation (psychological and social).
The principal aim of this paper has been that of introducing the discussion of an important topic which is connected to other traditional problems of moral theory. This paper has also attempted to break with the traditional way of facing the problem of punishment.