Punitiveness: A Philosophical Perspective

Jonathan JacobsJohn Jay College of Criminal Justice

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Punitiveness and legal punishment are distinct though there are important relations between them. The way in which a society punishes—its institutions of punishment, its policies, practices, the forms of attention paid to it and to the persons punished—all reflect prevailing attitudes of punitiveness, whatever they happen to be. That does not meanthat there is a single, uniform way in which punitiveness isfelt and expressed in a society. It is quite possible that the institutions, policies, and practices of punishment should be confused and confusing, and in large part because of confused and confusing attitudes concerning punitiveness.

There is an extensive literature on the aims and justification of punishment, on sentencing, and on possible alternatives to incarceration and to punishment in general. Criminalization, sentencing, the circumstances and prospectsof ex-prisoners, and other issues concerning punishment and its social impact have been studied by several different methodological approaches. The present discussion is an attempt to explicate some of the main features of punitiveness, its moral valence, so to speak, and its relevance to many important criminal justice issues. From a philosophical perspective punitiveness exhibits a complex texture giving rise to several significant, disputed issues.These concern its place in moral experience, judgment, action, and practice.

IWhat Can Moral Philosophy Tell Us About Punitiveness?

One of the standard ways to indicate the main branches of moral philosophy is to distinguish between normative ethics,

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metaethics, and moral psychology. Normative ethics is substantive theorizing about what is morally right or wrong,what people’s moral obligations are, what sorts of conditions constitute moral excuses or justifications, what considerations are most relevant to moral judgment, which states of character are virtues, and so forth. It is concerned with the content of morality. Metaethics concerns the epistemology, metaphysics, and semantics of moral value,moral judgment, and moral discourse. Whether there is moral knowledge, whether moral values are objective or subjective,whether moral judgments state moral facts or express non-cognitive attitudes, how moral properties are related to non-moral properties of persons, actions, and circumstances—those are all metaethical issues. It is possible to undertake normative theorizing or to debate normative issueswithout making one’s metaethical commitments and presuppositions explicit and perhaps, even without being aware of what they are. However, there are important relations between metaethics and normative ethics. Any normative claim is almost certain to be connected in important ways with certain metaethical commitments.1

Moral psychology concerns issues having to do with the nature of moral agency, forms of moral regard toward oneself and others, how states of character are acquired and whether they are revisable, the nature of moral motivation, the relations between desire, pleasure, and moral motivation, and other topics, as well. How best to understand conscienceand such phenomena as shame, guilt, remorse, resentment, hatred, forgiveness, friendship, love, and a long list of features of moral life and experience are issues of moral psychology.2

Often, when one is reading a work of moral philosophy, especially one written before about 1900, normative claims, metaethical claims, and moral-psychological claims will not be explicitly distinguished from one another.3 That is not because it is only during the last century or so that philosophers have attained enough clarity to recognize how

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to distinguish the variety of issues they write about.4 It is because of how academic philosophy has developed during the last five generations, with normative morality, metaethics, and moral psychology recognized as each having some of its own distinctive concerns and emphases though there are numerous ways in which they intersect and are braided together.

The present discussion will not divide its treatment of punitiveness into a few pages of metaethics, a few pages of normative ethics, and a few pages of moral psychology. That would be artificial and somewhat distorting. At numerous places I will indicate if a claim or an argument concerning punitiveness most clearly belongs to one or another of thosecategories but understanding punitiveness requires us to approach it in its complex, multi-dimensional reality. We should try to be clear about the different dimensions but not pretend that they are independent of each other.

IIHow Might Punitiveness Figure in Moral Life?

Whether people are punitive and in what ways, and how they take those ways to be justified shape significant aspects ofthe moral culture of a community. Punitiveness influences what we believe people deserve and how we see their moral standing. It shapes notions of appropriate responses to wrongdoing. Forms of punitiveness shape various important kinds of self-regard such as self-forgiveness, self-respect, and how we understand aspects of conscience. Punitiveness has to be thought about if for no other reason than the fact that human beings are capable of love, hate, guilt, blame, forgiveness, contempt, and a whole range of attitudes and motives with which punitiveness is connected. The way punitiveness figures in our lives can matter a great deal tohow we think about many normative issues and how we understand moral motivation.5

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One of the most basic issues is whether there is a proper orconstructive role for punitiveness or is it inherently toxic, always morally problematic. For example, Adam Smith held that:

Justice …is the main pillar that upholds the wholeedifice [of civil society]. In order to enforce

the observation of justice, therefore, Nature has

implanted in the human breast that consciousness of ill-

desert, those terrors of merited punishment which attend

upon its violation, as the great safe-guards of the

association of mankind, to protect the weak, to curb the

violent, and to chastise the guilty.6

And, “[t]hough disagreeable in some respects, resentment is one of “the guardians of justice, and of the equality of itsadministration”7 Smith recognized that resentment can corrupt motivation and can easily turn into a form of malice, but he denied that it is inherently morally problematic. He wrote:

The object, on the contrary, which resentment is chiefly

intent upon, is not so much to make our enemy feelpain in his turn, as to make him conscious that he

feelsit upon account of his past conduct, to make him

repent of that conduct, and to make him sensible, that

the person whom he injured did not deserve to be

treated in that manner.8

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In this view resentment has a role in preserving the civility of civil society. Smith is not saying that human beings are going to feel resentment and hatred in any case, so we must find a way to sanitize those sentiments, tame their destructiveness, and render them tolerable. They have a more positive role than that and, in fact, to lack those sentiments is indicative of a deficiency of moral concern for one’s fellow man.

Bishop Butler’s view is similar in some respects to Smith’s.In “On Resentment” Butler argued that resentment toward a wrongdoer is legitimate and that its, “useful purpose is defense—defense of the moral and legal order. True allegianceto morality and law is not merely intellectual but also mustbe revealed in passionate commitment: and indignation and resentment (a kind of self-referential indignation) represent such commitment.”9

We should note that in the tradition of British moralists, including Hobbes, Hutcheson, Shaftesbury, Butler, Hume, Smith, Reid, up to Bentham and Mill two hundred years after Hobbes, there is extensive attention to sentiments and theirrole in moral experience, moral judgment, and moral motivation. Even when these theorists developed normative theories in which specific obligations and principles playedan important role, the explanation of the rightness of the obligations and principles was often in terms of features ofhuman sensibility.10 In many cases they argued for there being objective grounds for moral judgments though their objectivity is to be explicated in terms of features of sensibility. This is certainly true of Smith. Mill’s accountof justice in Chapter Five of Utilitarianism assigns a crucial role to the desire to punish the person who has caused harm and to the feeling of sympathy (with the person harmed). Thus, a combination of social feelings and resentment is, inMill’s view, what underwrites the distinctively strict requirements of justice (the perfect obligations of justice,in contrast to the imperfect obligations of other elements

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of morality). According to Mill, matters of justice concern someone’s right being violated, and he explained rights in terms of especially significant and highly general types of utility. 11 But the concern to protect people’s rights and the resolve to see that justice is served depends upon angerand resentment in ways that resonate with aspects of Smith’sview.

Butler’s reflections on the human constitution and on morality acknowledged Scriptural sources for some elements of his view. One possible source is Leviticus, 19:17, where weread, “Thou shall surely rebuke thy neighbor.” Indignation concerning wrongful actions and engaging the wrongdoer over them can be morally appropriate. Moses Maimonides, [1138-1204] who has had an enduring influence on Jewish moral thought and interpretation of the commandments (all six hundred and thirteen of them, not just the Decalogue) understood the commandment to rebuke as a counsel of concernfor each other as members of a moral community, not as a counsel of condescension or alienation. He wrote: “If someone sees his fellow man who has sinned or who follows a way that is not good, it is a commandment to make him returnto the good and to make known to him that he sins against himself by his actions.”12 In the Christian tradition Aquinas [1225-1274] says that the “correction of a wrongdoer,” when it is “fraternal correction,” helps to do away with the wrongdoer’s evil and that is a way of procuring his good, and thus, “fraternal correction is also an act of charity.”13 He quoted Augustine: “You become worsethan the sinner if you fail to correct him.”

The willingness to correct another may seem an illiberal form of policing character. Actually, though, it can be, as Aquinas put it, “fraternal correction,” a way of loving the neighbor and, at least in some situations, it can be as important as forgiveness. The latter is overcoming resentment of wrongs done, and an overcoming of whatever estrangement from the community one’s wrong had brought about. We will say more about forgiveness below.

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In more modern thought Nietzsche famously argued that a powerful and complex form of ressentiment can develop when hostility is generated by the sense that one has been injured or treated badly by another and, as a result, one feels anger, often accompanied by the desire to strike back and to no longer be vulnerable to injury. He argued that theresentment that fuels this is often essentially reactive, a reaction of the weaker against the naturally stronger. If there is no direct way to strike back one will seek an indirect route to do so. Thus, the person full of resentmentmust somehow be craftier, cleverer, in some way creative. Nietzsche held that a way this has been done is by transforming values, interpreting the other’s strength as a weakness, as evil, and one’s own weakness as virtue, as somehow superior, and then claiming a moral victory. In thisform of what Nietzsche called “slave-morality” arising from ressentiment, the weak achieve strength by numbers and by fashioning a morality that impedes the more bold and more creatively spirited individuals who would otherwise have power over the weaker members of the majority. Resentment isthereby fashioned into a system of values. Nietzsche thoughtthat Christianity had elaborated and elevated this pathologyinto a prevailing, very unhealthy moral culture.14

Nietzsche’s conceptual diagnosis of ressentiment has influencedmany different views including some that disagree strongly with his overall account of morality and moral values. In recent decades several theorists have argued that resentmentand retributive sentiments are not always or necessarily pathological and are not always on the way to becoming ressentiment. Michael Moore has defended the view that resentment or moral hatred is not only sometimes appropriateas a sentiment but that it has a morally epistemic role. He writes, “it is virtuous to feel moral outrage purified of ressentiment in response to serious wrongdoing. In my view, such revulsion is the only tolerable response of one who cares about other people and who cares about the morality that binds us together.”15

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While Aristotle is not a direct source for Moore’s view of the epistemic role of resentment he is a significant source of a range of moral-psychological views concerning the role of desires and emotions in moral judgment, especially in virtue-centered conceptions of ethics. Aristotle gave an account of the role of desires and emotions in the virtues of character involving the following elements: (a) one cannot acquire a correct understanding of what makes right action right without having acquired the sensibility enabling one to be receptive and perceptive in the relevant ways; this is why early habituation is so important; (b) in the virtuous person desire and emotion aim at what reason understands to be good; i.e., non-rational propensities and susceptibilities are oriented and ordered by right understanding; there are aspects of our nature (desire and emotion) capable of “listening to reason” and being orientedby it though they are not in their own right rational or aspects of intellect; (c) “Thought by itself”, Aristotle says, “moves nothing; what moves us is goal-directed thoughtconcerned with action.”16 Without desire and sensibility we would not be motivated to act even though it is not desire or sensibility on its own that determines what is the right end of action or the reasons for action. Unlike, for example, Kant, Aristotle held that reason on its own does not have motivational efficacy. In addition, he said, “nonrational feelings seem to be no less human than rationalcalculation; and so actions resulting from spirit or appetite are also proper to a human being. It is absurd, then, to regard them as involuntary.”17

The question concerning motivation is important because one might argue that, while there are circumstances in which a certain sentiment is morally appropriate, it should not alsofunction as a motive. One might hold such a view especially if one is concerned that human beings are highly susceptibleto being led by their desires and emotions apart from understanding and rational guidance. Maimonides, for example, argued precisely that way regarding anger. His view

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was that, while anger is often justified, one should strive as fully as possible to minimize the degree to which one’s motivation is driven by feelings of anger. Aristotle, however,argued that even with regard to anger and indignation there certainly is such a thing as “having these feelings at the right times, about the right things, toward the right people, for the right end, and in the right way…”18. The virtuous agent is not a-pathetic, but rather is affected rightly.

Contemporary defenders of a role for resentment and retributive sentiments recognize the possibility of toxic forms while insisting that there are morally appropriate forms, as well. In “The retributive idea,” one of her chapters in Forgiveness and Mercy, Jean Hampton writes:

So I am proposing that retributive punishment is the defeat of the wrongdoer at the hands of the victim(either directly or indirectly through an agent of the victim’s, e.g., the state) that symbolizes the correct relative value of wrongdoer and victim. It is a symbol that is conceptually required to reaffirm a victim’s equal worth in the face of a challenge to it. Thus the punishment has a telos, but the telos is not so much to produce good as it is to establish goodness.19

She says a few pages later, “But the retributive motive for inflicting suffering is to annul or counter the appearance of the wrongdoer’s superiority and thus affirm the victim’s real value.” 20 The retributivist, she says, “is using a competitive victory to deny an incorrect claim about relative worth.”21 This is not merely reactive, not an

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indirect way of trying to exert power from a position of weakness. It is a setting right of the moral standing of offender and victim in a way that restores equality by an active assertion of it, by punishing the wrongdoer. (Hampton’s view reflects Hegel’s influence.)22 It is affirmation of significant values concerning moral standing;it is not malice or revenge disguised as principle.

The considerations mentioned so far enable us to recognize at least the following important questions: (i) Are there respects in which resentment, anger, and moral hatred can bemorally appropriate sentiments; can they have proper objectsand be experienced in proper degree? (ii) Are there respectsin which such sentiments are not only morally appropriate but also have an epistemic role, a role in discerning moral features of an action, person, or situation? (iii) Are thererespects in which such sentiments can have a proper role in moral motivation? (iv) Are there respects in which such sentiments can be connected with significant normative matters such as the justification of punishment?

In some of the views mentioned not only can punitiveness have a place in morally fit sentiments, it has an important role in regard to preserving the civility of civil society. If we did not experience resentment, if we managed to never experience moral hatred aimed at wrongdoers, that would weaken some of the bonds between people that enable a society to be a moral community in which there is mutual respect and concern. Much of Antony Duff’s work on punishment and community involves such notions.

At the same time, there is no question that punitiveness caneasily be motivated by, and reinforced by excesses of pride,feelings of superiority to others, and by sheer anger or malice. In such cases it is morally corrupt and is likely tomotivate morally problematic conduct. Moreover, the fact that punitiveness can have a role in preserving the civilityof civil society insofar as it can express a constructive type of moral concern for others does not ensure that those

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at whom it is directed are receptive and appreciative. From their perspective punitiveness may be seen as contempt or malice rather than concern or an opportunity for ethical reform, and they may be right. It may be that for punitiveness to have a constructive role society needs to have achieved a level of civility we cannot take for granted, and which is difficult to achieve. The civility in question is not simply a matter of complying with the rule of law. It is a matter of the degree to which citizens regard the rule of law and the institutions of criminal justice as legitimate and fair and, in conjunction with that, have a general disposition to trust others rather thanhaving a default perspective of suspicion and distrust. If many offenders are alienated from society and regard it as unjust it is not likely that they will regard punishment as a mode of address having their own good as its purpose. Moreover, in that case, punitiveness will aggravate the situation rather than promoting trust and civility. That is especially so if many members of civil society have contemptfor offenders or believe that punishment should be a miserable experience, one that impresses on those punished that they are helpless against society’s willingness to cause them to suffer. If punitiveness takes a toxic form it will almost certainly fail as a mode of address and has a better chance of fueling bitterness than of motivating ethical self-correction. The ill-effects will be worsened ifpunitive attitudes follow prisoners after release and motivate forms of disenfranchisement and disqualification. If a criminal record burdens the ex-prisoner’s life indefinitely society’s punitive attitudes and the reactions of those at whom they are aimed will deepen the deficit of civility and the erosion of mutual trust. Among the kinds ofharm to which victims of excessive punitiveness are vulnerable is damaged self-esteem, regarding oneself as having little worth and not deserving to be able to lead a gratifying, self-respecting life in free society.

Despite the possibility of punitiveness doing damage of thatkind we should consider the possibility that there is a role

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for punitiveness if the form it takes is that of concern to see that justice is served. That does not mean that being punitive is itself a virtue, a character state for which a person is praiseworthy. If there is a morally acceptable role for punitiveness it may be that it needs to be “governed,” so to speak, by the virtue of justice and perhaps also by compassion, generosity, honesty, humility, and other virtues. Unguided by justice (and those other virtues) or powerfully fueled by hostile passions punitiveness easily becomes toxic and is able to do considerable damage to relations between people and forms ofmutual regard. It may be a similar to anger in the respect that how punitiveness is related to other features of character and other motivational dispositions is crucial. There are occasions for, and ways of feeling anger that are morally sound, even commendable. That does not make anger, as a standing disposition or as a stand-alone disposition, a virtue; far from it. Like anger, punitiveness can impact moral perception, judgment, and motivation. If it becomes ”second nature,” a persisting disposition in its own right, the punitive person may fail to exercise thoughtful care in how it figures in judgment and motivation, and may fail to be alert to how easily it can be morally corrupt and corrosive.

IIIOvercoming Punitiveness: Forgiveness and Forgiving

How should we see punitiveness in relation to what are oftenregarded as some of the morally best capabilities of human beings, such as the capability to forgive, to renounce resentment, to repent, and to morally improve ourselves? Is punitiveness only morally acceptable if it is a stage on theway to one of those other attitudes and forms of regard? Does punitiveness have an important role even if we should strive to forswear it, to rise above it? Does it bring low the punitive person as well as seeking to bring low the object of punitiveness?

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In both the religious tradition (in the current context, chiefly the Abrahamic monotheisms) and in secular thought a role sometimes ascribed to punitiveness is to motivate ethical self-correction or penance. (This is another respectin which Duff’s work is an excellent example.) One way to understand punishment is to see it as communicating denunciation and causing suffering (by deprivation of liberty or other forms of suffering) but causing suffering so that the persons punished might be motivated to acknowledge the wrong they have done or the harm caused, resolve not to act similarly again, and to connect or reconnect with correct values. Even the pain of conscience and the blow to self-esteem need not be unalloyed misery; they can (and, in some views, should) motivate ethical reformor growth. Punitiveness is not limited to a negative messageand need not be experienced as wholly alienating one from the community. It can be a mode of addressing the person punished as a rational, accountable agent capable of morally‘righting’ himself. It can be understood as an essential element in a ‘dialogue’ between persons but one that is not merely verbal. Punitiveness can be expressed by censure and imposed by punishment but in neither case, intended to harm or to injure.

Some philosophers have argued that, given what human beings are, censure or condemnation is not in general adequate to bring wrongdoers to acknowledge their wrong and the harm it has caused and to motivate repentance. For effective communication, genuine acknowledgment, and a repentant response punishment, hard treatment, is required. As Duff hasput the point,

punishment, like moral blame, is related logicallyrather

than merely contingently to the end at which it aims: it

aims at a kind of reform which must involve the criminal’s

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repentant understanding of her past crime; and it is that

understanding which punishment, as a communicativeand penitential enterprise, aims to arouse and

express.23

That does not mean that the communication or the relation tothe offender ends with shutting and locking the cell door. Punitiveness can be seen as an important element of an overall moral relation that then can also include compassionate concern and even forgiveness. Holding that punitiveness can be morally proper does not also mean that there are moral reasons to hold a grudge, to continue to resent the wrongdoer or to regard the wrongdoer as having a lesser or morally inferior status. Here, again, the medievals are helpful. Maimonides held that it is a transgression to bear a grudge. He wrote:

Rather, he shall blot out the matter from his heart and not

bear a grudge. If he bears a grudge over somethingand

remembers it, he might come to take vengeance. Therefore

the Torah was particularly concerned with grudge-bearing

so that the wrong done be completely blotted out from a

man’s heart and he not remember it. This is the appropriate

character trait; it makes possible the settlement of the earth

and social relations among human beings.24

Confession, penance, and forgiveness constitute much of the fiber of the Christian fabric of soul, forgiveness being a “powerful weapon” in a spiritual arsenal against enduring resentment, contempt, and moral alienation. “If thy brother trespass against thee, rebuke him; and if he repent, forgive

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him.” [Luke, 17:3] Forgiving can be instrumental in restoring relations between people, in overcoming resentmentof wrongs done, and in showing that the person forgiven is not seen as morally rotten or as distanced from the moral community, as excommunicated.

Forgiving is often understood as the forswearing of resentment and ceasing to regard the other as morally wretched or deserving contempt. Forgiving is not just ceasing to feel anger or hatred or a desire for revenge. In forgiving one “has overcome those vindictive attitudes and has overcome them for a morally creditable motive—for example, being moved by repentance on the part of the personby whom one has been wronged.”25 One might hold that repentance on the part of the wrongdoer is a (morally, if not psychologically) necessary condition for forgiveness. Such a view does not have to be underwritten by theistic commitments though in Judaism, Christianity, and Islam the possibility and significance of repentance and forgiveness have a pronounced presence and they are understood as supported and guided by divine help. (Forgiving is not easy.)

Some questions concerning forgiveness are these: (1) Is forgiving always virtuous? Is it ever a moral mistake to forgive? (2) Can we forgive on behalf of others? (3) How should we understand the relation between forgiving and punishing? (4) Is forgiving ever a moral requirement? Can there be a duty to forgive? (5) Is it a condition of forgiveness that the wrongdoer has repented? What if, as sometimes appears to be the case, forgiving helps motivate repentance? The complexity—logical and moral—of forgiveness,repentance, and punishment is evident.

An important matter bearing on many of the issues raised in this discussion is the question of whether there remains plasticity in a mature individual’s character. Is it reasonable to expect that a long-time, malicious criminal, for example, can repent (genuinely) and undergo moral self-

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correction? Or, is one’s second nature typically fixed to such a degree that, in most cases, it is not reasonable to expect people to ethically improve in ways that are anchoredin genuinely changed states of character and not just a prudential judgment that the risk of punishment outweighs the possible gains from criminal conduct?26 Also, how shouldwe regard those persons who have repented but then lapsed? Is that evidence that the repentance was not genuine or only that it was not enduring? Is there a point at which it is safe to conclude that this individual is beyond moral reformation even if he or she makes what appear to be genuine attempts at it? Is there a point at which forgiveness becomepointless?27

The moral psychology of repentance, forgiveness, and moral transformation does not require theistic commitments (though, of course, many theists would argue that it requires theistic assistance). We can consider the issues in broadly naturalistic terms. Are there reasons to believe that there can be, so to speak, naturalistic grace? If there are,one form it might take is overcoming punitiveness, and another is overcoming moral vice. The task of moral transformation (if we believe that there is one concerning these matters) is not a task only for the wrongdoer. The character of relations between people and the prevailing attitudes and sense of what is possible, doable, attainable,and reasonable to expect of people can depend on what all parties are like, and not just criminals. If there are reasons to think that moral reform and character-change are possible, in what ways, if any, should criminal justice takethem into account? How should the possibility of ethical reformation figure in how offenders are treated? How do considerations of fairness intersect with that issue? What should be expected of people in general and not just those who are guilty of serious offenses? What would need to be done to encourage a culture of “healthy” punitiveness and the real, practical possibility of sanction being effective,constructive communication and not just an imposition of suffering?

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IVThe Relevance of Moral Luck

A further issue with important bearing on questions concerning punitiveness is the issue of moral luck. By “luck” I do not mean chance or randomness but all the ways in which we, even as rational agents, are not in control of many of the morally relevant features of our actions and their consequences. There are many respects in which we are subject to moral luck and it is a complicated family of issues. What makes it moral luck is that the features in question can make a significant difference to whether an action or agent is morally praiseworthy or blameworthy (in contrast to when an action simply being welcome or unwelcome, liked or disfavored); to whether its impact is negligible or profound; to how we regard the agency of the person who performed the action; and even what we take the act to be.

If I deliberately mix poison into my guest’s drink, not knowing the poison was sold to me by an unscrupulous merchant who knew that its toxicity had weakened to the point of being ineffective then I am guilty of an attempt but not a murder. How things “turn out” can make a crucial difference to what, in fact, I did. In this case, the actualresult fell short of the agent’s intention and, in that sense, was “less” than the act intended, and less bad than the act intended.

Imagine a different case. Here, a careful, thoughtful driver, backs her car from a driveway onto a street where she knows that bicycles are prohibited. On the basis of thatknowledge, and with no pedestrians or vehicles in view she proceeds to back-up—as she has many times before—leaning outthe driver’s side window to wave goodbye, not noticing a young child on a small bicycle behind her car, and the child

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is inattentive to the reversing car. She hits and kills the child. Her conduct is no different, no more negligent than in the hundred other occasions when she has backed-up in exactly the same place, in the same way, without incident. We may try to persuade her not to blame herself but it wouldbe nearly monstrous for her to think, “that wasn’t my fault;no need for me to feel guilt or regret over it.” This is an example of moral luck because, though the agent is not guilty of wrongdoing, the event still (properly) has significant moral weight for her as an agent. This is an illustration of just one of many different forms of moral luck.

Here are some of the ways that moral luck can be relevant toissues that arise when thinking about punitiveness.

(i) There is moral luck in regard to one’s temperament and natural dispositions. We (correctly, we think) blame a person for behaving in a cowardly manner when something very significant is at stake (and thedanger is not strikingly terrifying) though the person’s cowardice is (we can suppose) in large measure beyond his control just as much as whether he has the talent to be a superior pianist or hurdler is beyond his control. Or, suppose someone is particularly punitive, or disposed to forgive, ormore than ordinarily sympathetic, or uncommonly unmoved by the plight of others…In what ways should the presence or absence of natural dispositions (forgood or ill) impact judgments of blameworthiness andpraiseworthiness, for both action and character?

(ii) There is moral luck in regard to what sorts of challenges and circumstances we encounter. It is easy to say, “I would have stood up to him and insisted on fair treatment” and yet, if one has never faced such circumstances, we do not know—even about ourselves—how we would have acted.

(iii) There is moral luck with regard to the people by whom we have been habituated, and who has been there

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to be examples to us. Maybe this person is a bigot in large part because he was raised by bigots who come from a long line of bigots who have never considered seeing things in any other way. Is our bigot’s responsibility for being a bigot diminished because he was not presented with alternatives and had little opportunity to make comparative judgmentsconcerning what values to endorse?

(iv) We often make decisions in the absence of knowledge (or even much information) about what will eventuatefrom our having chosen that course of action. As in Bernard Williams’ influential example, suppose that when Gaugin abandoned his wife and children to go toPanama and then the South Pacific to pursue his art,it turned out that he had no real aptitude for painting or that his art was of no interest or that it all went down in a sinking ship on its way to an exhibition in Paris, never having been seen by anyone but Gaugin. If he went down with the ship along with his art, we would know nothing of him at all. As it happens, we generally know Gaugin as a great and important artist, not a terrible husband and father.

Our lives are pervaded with luck and with moral luck. That holds with regard to how punitive we are and whether those we have harmed are disposed to forgive us. It makes a difference to which virtues come more easily to us and with regard to whether we are presented with powerful, morally questionable temptations. And so on and on.28 Adam Smith, writing of the influence of fortune said:

The effect of this influence of fortune is, first,to

diminish our sense of the merit or demerit of those

actions which arose form the most laudable or blamable

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intentions, when they fail of producing their proposed

effects: and, secondly, to increase our sense of the

merit or demerit of actions, beyond what is due tothe

motives or affections from which they proceed, when

they accidentally give occasion either to extraordinary

pleasure or pain.29

“Even the merit of talents and abilities which some accidenthas hindered from producing their effects, seems in some measure imperfect, even to those who are fully convinced of their capacity to produce them”30 And, “[t]he thief, whose hand has been caught in his neighbour’s pocket before he hadtaken any thing out of it, is punished with ignominy only. If he had got time to take away an handkerchief, he would have been put to death.”31

Aristotle acknowledged the role of moral luck in our lives in regarding natural temperament and habituation (by others)as significant formative factors in regard to character and a person’s conception of what is choiceworthy and good. At the same time, he argued that mature persons are (except when certain conditions obtain, which he identified) typically responsible not only for their actions but also for their characters. There is no question that there is at least apparent tension between the former and the latter claims, (basically, between Book II and Book III of Nicomachean Ethics) and interpreters disagree over how successfully Aristotle resolved the tension. Many regard himas having provided a defensible articulation of how they arereconcilable but there is certainly room for argument.

Kant famously sought to make morality altogether immune fromluck by locating moral worth entirely in the exercise of rational volition, which he took to be unconditioned by

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empirical factors.32 Rational volition is an exercise of rational autonomy, without which human beings would be as fully subject to deterministic laws of nature as any other natural entities. Kant held that the existence of moral value and the possibility of moral action depend upon the reality of an a priori law of reason, respect for which is what distinguishes actions with moral worth. That law of reason is a criterion for morally valid maxims of action and, at the same time, it is the basis of the respect owed to all persons as ends in themselves never to be regarded ortreated merely as means. To be sure, Kant’s metaphysics of morals involves claims and commitments that elicit many important objections. Nonetheless, it is crucial to recognize that Kant’s moral theory is also a powerful (and distinctively modern) statement of egalitarian moral democracy in that every human being is owed moral respect asa rational agent and to act morally is to answer only to theauthority of one’s own reason. In Kant’s view, whether we have punitive inclinations is a matter of empirical psychology over which we have little control, yet, whether we are motivated by punitive inclinations is a matter determined by whether we exercise rational self-determination in respecting ourselves and others.

Conclusion

These concluding remarks are simply where the paper stops, not where, in some culminating or conclusive sense it ends. Every issue that has been raised merits and needs much fuller elaboration and explanation.

As noted early in the discussion punitiveness—how it is felt, how it is expressed, where it is directed, how it is regarded, and so forth—can have a significant role in the moral culture of a society. Its relevance to specific matters of criminal justice should be beyond dispute but it is also powerful in less official, more spontaneous, everyday ways. It can shape and be shaped by the character of political debate and how civil or uncivil discussion and

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argument are in the many contexts of civil society. If thereis a deficit of civility in civil society it is at least plausible to consider whether an atmosphere of punitiveness (and toleration of it) is part of the explanation. It is certainly worth looking at where, when, in what ways punitiveness aggravates various disputed issues or complicates the working of institutions. If there is much ofit about, it can impose a “tax” of a sort, making those things it affects more difficult to do, and it can intensifywhatever distrust or suspicion there is in the atmosphere.

The context of criminal justice (in all of its huge scale and complexity) is something of a center of gravity for punitiveness. It is a context in which we see the effects of punitiveness in some of their starkest and most officially institutionalized forms, and it is a context many people believe is a proper place for punitiveness, maybe a great dealof it. It is vitally important to know what we can about theempirical facts regarding punitiveness. But as we seek that knowledge it is as important to do what we can to attain a level of fluency and clarity regarding the concept punitiveness, eliminating vagueness, disentangling the ambiguity of multiples senses, and tracing out its conceptual anatomy and how that figures in the social metabolism of punitiveness. That is needed in order for us to have any realistic hope of making the best sense we can of the normative significance of punitiveness and whether and where it has any proper place in moral life.

End Notes

1. For example, hedonistic utilitarianism (J.S. Mill’s position) is a form of moral naturalism insofar as it maintains that moral facts can be explicated in terms of naturalistic features of human beings, viz., conscious states of desire and of pleasure and pain, (even if they need to be ascertained on the basis of

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people’s preferences). Plato’s conception of the Good is a conception of a non-naturalistic reality that is the object of moral knowledge, and it is what is instantiated by approximation by anything that is good.

2. The lengthiest single-topic discussion in Aristotle’s Nicomachean Ethics is the discussion of friendship, which he regarded as a crucially important matter of both moral psychology and normative ethics.) Punitiveness isan issue of moral psychology and because of how punitiveness can figure in motivation, and how it can shape conceptions of what is morally justified, required, unacceptable, and so forth it has complex relations with normative thought and issues of metaethics. Though there are some philosophers who undertake empirical studies as part of philosophical inquiry (and in recent years so-called “experimental philosophy” has attracted a following) the vast majority of philosophical moral psychology is distinctively philosophical in its method and it addresses philosophical problems. Of course, it seeks to cohere with what we have good empirical reasons to believe, and it aims at illuminating familiar aspects of moral life and experience. But it is not an attempt to make empirical claims by a priori methods. It involves, among other things conceptual analysis, the identification of presuppositions and the tracing out of implications, and the explication of normative significance.

3. G. E. Moore’s Principia Ethica, published in 1903, set muchof the agenda of metaethics for many decades. That is not to say that large numbers of philosophers agreed with Moore but his formulations of some of the central issues of meatethics shaped a great deal of metaethicalanalysis, theorizing, and debate for many years. In addition, the majority of influential English-language philosophy concerning morality between 1903 and the late 1960’s was metaethical rather than normative.

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There are complicated historical reasons why that was the case, but it is no longer the case. Metaethics remains very important in philosophy there is a great deal of normative theorizing now, and moral psychology as well.

4. While Moore’s thought was very important to metaethics philosophers had been making enormously significant metaethical claims and arguments since at least fifth-century BC, Plato’s dialogues being paradigmatic sources. They had also been making enormously importantmoral-psychological claims since at least that time, and Plato’s thought and Aristotle’s thought regarding issues of moral psychology remain among the most significant contributions. Similarly, with respect to normative thought; the history is very long. It should be noted, also, that for many persons the Abrahamic monotheisms are crucial sources of normative commitments, key elements of moral psychology, and metaethics though Scripture does not compartmentalize or label different portions of text as one or the other. Whether or not faith commitments are part of one’s life it is clear that sacred texts present a richand complex moral anthropology with elements of all three kinds.

5. Any moral theory, in order to even attempt to be adequate, must address the question of the locus and nature of moral value, and the question of moral motivation, i.e., what would move a person to actually do what is morally required. And, the two issues can berelated in important ways. Because one’s normative theory may involve significant claims about, for instance, the roles of reason and desire in explicatingmoral value, or the way in which happiness is related to what has intrinsic moral value, or how passions shape motives moral-psychological considerations can have an important place in addressing both of the fundamental questions.

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6. Adam Smith, The Theory of Moral Sentiments, ed. D. D. Raphael, A. L. Macfie, Indianapolis: Liberty Fund, 1976, 86, II.ii.3.3.

7. Ibid., I.ii.3-4, 35.

8. Ibid., II.iii.I.6, 95-6.

9. Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits, NewYork: Oxford University Press, 2003, 104.

10. Some of the most influential British Moralists were critics of rationalist intuitionism and sought to put morality on a basis grounded in the sentiments but not in way that rendered moral judgment subjective in aperson-relative sense. Hume is a notable critic of moral rationalism and intuitionism, and he and Smith are examples of theorists who certainly held that moraljudgments could be correct or incorrect in ways that are shared, common, and not subjective in a person-relative way. Smith elaborated an account of moral judgments using resources grounded in sympathy, imagination, and the capacity for impartiality. While the “materials” that go into arriving at moral judgments are all contributed by the subject (rather than by moral facts or by properties independent of subjects) the judgments are not intended to express values in a subjectivist or relativist sense; in an important sense moral judgments can be objectively valid. There is not space here to assess Smith’s project (or Hume’s) but it is worth taking note of the character of the project and that it was meant to avoidsome of the metaethical difficulties raised by rationalist intuitionism.

11. Mill’s attempt to assimilate rights and justice to utilitarianism is widely regarded as one of the lesssuccessful parts of his elaboration and defense of

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hedonistic utilitarianism. However, the distinction he makes between that part of morality that concerns so-called “perfect” duties, and that part concerning “imperfect” duties is found in many ethical theories, whether or not they share anything else with Mill’s. Perfect duties are those obligations one is to fulfill in specific ways in regard to assignable individuals. Treating someone unjustly or violating a right is an example of a violation of a perfect duty. Imperfect duties are those moral obligations that can be fulfilled in a number of different ways, and with regard to persons indifferently. We might say that one has an imperfect duty to be charitable or generous but that does not imply that any particular individuals have a right-based claim on your charity or generosity.There are many discretionary ways in which one can exercise the virtue of charity. But if one has signed avalid contract, that is the basis for the other party making specific claims against you if you fail to fulfill the terms of the contract.

12. Moses Maimonides, “Laws Concerning Character Traits,” in Ethical Writings of Maimonides, ed. Raymond L. Weiss, Charles Butterworth, New York: Dover, 1983, Ch Six, p. 48

13. Thomas Aquinas, Summa Theologiae, Second Part of the Second Part, Q. 33, Art. 1.

14. The Genealogy of Morals and Beyond Good and Evil are both excellent sources for exploring Nietzsche’s view of “master” and “slave” values and how resentment and weakness have been transformed into what he regarded asa deeply pathological morality masquerading as virtue.

15. Michael Moore, Placing Blame: A Theory of Criminal Law, Oxford: Oxford University Press, 2010, 144.

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16. Aristotle, Nicomachean Ethics, Second Edition, ed. Terence Irwin, Indianapolis: Hackett Publishing Co., Inc., 1999, 1139b 1-2.

17. Ibid., 1111b 2-4.

18. Ibid., 1106b 21-24.

19. Jean Hampton, “The retributive idea,” in Forgivenessand Mercy, by Jeffrie G. Murphy and Jean Hampton, Cambridge University Press, New York, 1988, 125-126.

20. Ibid., 130.

21. Ibid., 138.

22. See the relevant sections of Hegel’s The Philosophy of Right.

23. R. A. Duff, Trials and Punishments, New York: Cambridge University Press, 1986, 262.

24. Maimonides, “Laws Concerning Character Traits,” Ch. 7, 52.

25. Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits, 13.

26. The issue of the fixity vs. plasticity of mature character is relevant not only to persons with vicious states of character. In Aristotelian ethics the ideal is the virtuous agent whose virtues are so firmly fixed that he or she does not even perceive any appeal in contrary-to-virtue courses of action. Sound virtue is not a matter of slaying the dragon of wayward inclination or passion time after time, but of it no longer appearing and threatening one’s judgment and motives. Aristotle argued that, even though states of character tend to become fixed, that does not diminish

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the voluntariness or responsibility of the mature agent. See Book III of Nicomachean Ethics for his treatment of that issue. The question of whether statesof character tend to become fixed is a complex matter and several different sorts of considerations are involved. I won’t even try to list them here; but this is a matter of moral psychology of very considerable importance both to the explanation of human action and to normative ethics.

27. The question of the point of forgiveness is not only a matter of whether the person forgiven continues to perform seriously wrong actions. The point of forgiveness is just as important for the person who forgives. We might think that even if forgiving someone has not helped facilitate that person’s moral reformation, forgiving is something we should do because of what is at stake in regard to what sort of people we are. At least that is an issue meriting consideration. In addition, the question of whether to forgive more than once—whether the wrongdoer commits similar offenses or different types of offenses—is a difficult, contestable matter. When does generosity of spirit become morally unhealthy (for everyone concerned) indulgence or even a sort of narcissism of virtue? It is not difficult to see that forgiveness is not always or necessarily virtuous. And, it can give rise to very challenging questions concerning justice.

28. The issue of moral luck has been extensively discussed in recent years. There is a vast literature on the topic. Two of the most influential papers are: Thomas Nagel, “Moral Luck” in his Mortal Questions, Cambridge University Press, Cambridge, 1979, and Bernard Williams, “Moral Luck,” in the collection of his papers, Moral Luck, Cambridge University Press, Cambridge, 1981.

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29. Smith, The Theory of Moral Sentiments, II.iii.2.I, 97. Smith presents a subtle, richly illustrated discussion of “the influence of fortune” on action and the evaluation of action in The Theory of Moral Sentiments.

30. Smith, The Theory of Moral Sentiments, II.iii.2.3, 98.

31. Ibid., II.iii.2.4, 99.

32. See Kant’s Foundations of the Metaphysics of Morals for hisaccount of why morality must include an a priori element,for the difference between acting in conformity with the moral law and acting out of respect for the moral law, forhis account of the difference between a law of nature and a law of reason, and for the relevance of that difference to the difference between the price of thingsand the dignity of persons.

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