RETHINKING PUNISHMENT AND THE (UNEASY) RELATIONSHIP BETWEEN AN AXIOLOGY OF PUNISHMENT AND ITS DEONTIC IMPLICATIONS
[☛ read the rest of the Symposium on Leo Zaibert, Rethinking Punishment (2018)]
Rethinking Punishment focuses on the need to shift our attention in theorizing about punishment. Zaibert suggests that theorists have largely misunderstood the nature of the question regarding the justification of punishment by concentrating exclusively on whether punishment ought to be inflicted, or whether it is permissible to inflict it upon a given wrongdoer. By contrast, he argues that we should focus on whether punishment, and in particular the suffering element that it involves, is a good thing. This turn, Zaibert suggests, allows us to abandon “simpleminded,” “monistic” justifications for legal punishment in favour of a “pluralistic” account which—he suggests—does more justice to the complex, “dilemmatic” moral reality of punishing wrongdoers. The book largely succeeds in pushing the contemporary debate forward. It is a compelling piece of research that challenges some of the standard assumptions in the contemporary philosophical literature on punishment. I am more skeptic, however, in that its main contribution will persuade too many scholars in following Zaibert’s preferred path. The main reason for this is that the implications of his theory for the assessment of our current practices of legal punishment are rather thin, or so I shall argue in this short essay. To do that, I shall concentrate exclusively on two of the central theses that Zaibert defends throughout the book, namely that inflicting deserved suffering is not (necessarily) bad, and that we cannot fruitfully think about the moral value of punishment without also referring to the value of forgiveness.
The central move Zaibert advocates in Rethinking Punishment is to challenge the type of question that a philosophical account of punishment must focus on. Zaibert suggests that contemporary debates on the justification of legal punishment have become “deadlocked” between retributivism and consequentialism (deterrence). He believes, by contrast, that there is a much more important distinction that may help illuminate the problem of punishment which has remained largely if not entirely underexplored, i.e., the distinction between “the axiological and the deontic” (13). That is, the debate has focused on the question of whether it is permissible to inflict punishment on wrongdoers, and whether authorities have a duty to do so. In turn, Zaibert advocates a type of exploration focused on assessing the moral justification of punishment in axiological terms, that is, in terms of value theory, or of the “theoretical questions about value and goodness” (13). His focus “is not necessarily (and certainly not primarily) action-guiding” (11). This distinction is also important because he argues, plausibly in my view, that his preferred justification, retributivism, “should be seen as an axiological doctrine, not a deontic one” (14, emphasis in the original).
Zaibert rejects “medicinal” justifications of punishment, which reduce “the real and deep moral and political problems associated with punishment to mere ‘technological’ ones” (8). By contrast, he wants to argue that deserved punishment is intrinsically valuable. In order to do this, he assumes two “essential conceptual connections,” namely, one “between punishment and suffering (understood very generally),” and the other between “punishment and (perceived) wrongdoing” (3). On these grounds he challenges the standard assumption in contemporary accounts that the suffering element of punishment is something intrinsically bad, and therefore in particular need of justification. A central task of his account is thereby to explain “why it is sometimes good to deliberately choose to create more suffering in the world” (6), particularly by way of inflicting (deserved) punishment to wrongdoers.
He recognizes that retributivism is often charged with it being “mysterious,” or prone to “magical thinking” (56). Thus he purports to dissolve any “mystery” in this type of claim by endorsing an axiology based on the retributive idea of suffering being deserved, and on the conceptual apparatus of organic wholes, which he takes from G.E. Moore and Franz Brentano. Organic wholes, Zaibert claims, are “the best way … in which desert can enter into one’s axiology” (33). Their most salient feature is that “their value is additively independent from the value of their parts” (41). A standard example is music. A tune can have greater value (in this case esthetic value, rather than moral) than the total value of all of its notes. It is the order of these notes that is able to give the organic whole a value that differs from the total value of the notes, taken separately. Zaibert thereby argues that an “organic whole in which a wrongdoer suffers to the extent that she deserves may be more intrinsically valuable than one in which all remains the same except that this deserving wrongdoer does not suffer” (42). This particular understanding of the relationship between deserved punishment and value, allows him to explain how punishing the deserving is intrinsically good. Namely, “the value of desert is the result of it being a form of order” (44-45), a kind of plot, by contrast to “an entirely random collection of … episodes” (46). It is “specifically the order that desert imposes” to an organic whole that makes it intrinsically valuable (47).
Zaibert illustrates his account by reference to the case of Otto Ohlendorf, a member of the SS in Nazi Germany, who was tried in the Einsatzgruppen trial in Nuremberg by US authorities. He was convicted for having been “directly responsible for the murder of a reported ninety thousand (innocent) Jews” (55). Although Ohlendorf admitted that this included innocent men, women and children, he insisted—Zaibert recalls—that they were “only” between sixty or seventy thousand. Furthermore, Ohlendorf reportedly felt “no remorse … except nominally.” In short, Ohlendorf was a moral monster. Zaibert suggests that although we are right in thinking that suffering has, by default, a negative value, a world in which Ohlendorf experiences suffering as a result of the infliction of punishment for his crimes is intrinsically more valuable than one in which he suffers “random headaches.” This one, in turn, would be also intrinsically more valuable than one in which he escapes punishment altogether, and goes on to live a happy life. If all this is true, and I suspect many would agree that it is, then it seems true that Zaibert is right in that suffering is not “necessarily bad, or that its presence in any organic whole necessarily decreases its value” (55).
Admittedly it is hard to resist the thought that Ohlendorf must suffer as a result of him being punished, or at least that it is not morally problematic that he does. I am not, however, sure that what is behind this very strong intuition is that him suffering is intrinsically good. We feel so strongly in his case that it is not always easy to see what is doing the argument. Be that as it may, even if we grant Zaibert’s proposition for the sake of argument, my main concern is what this can actually tell us about how good it is, how much value it brings about. This is particularly important if we are interested in whether we ought to punish him. Although Zaibert centrally claims that punishment theorists must focus on axiological considerations, he is aware that deontic questions matter too. Unfortunately, at no point in the book he clarifies how much intrinsic value deserved punishment (suffering) creates, nor the precise relationship between the two domains. Besides some generic assumption that there is some kind of internal relation between the axiology of punishment and its deontic character, we are never told how weighty the intrinsic goodness of deserved suffering is and how this would translate for a deontic account of legal punishment.
These missing steps cause problems. If it turned out that his axiological, retributivist account makes only a slight moral difference in terms of what we ought to do, then I fear his argument is not as decisive as he suggests. Consider two worlds which are both exactly identical but for two things: in the first world Ohlendorf is punished but a given family is (undeservedly) homeless; in the second world, Ohlendorf goes free, but this family lives in a nice home. If one were to compare the goodness of both these worlds, I wonder how many people would rather go for the one in which Ohlendorf is punished.
Furthermore, as a second, related concern, I believe that this account based on organic wholes is insufficiently weighty for deontic purposes. In particular, I wonder how many people would choose to punish Ohlendorf if that meant making a family homeless. I myself would certainly not. And the reason for this is that even if I concede that Ohlendorf must suffer, this would not be the kind of consideration that would justify, by itself, setting up a criminal justice system to do so. Put differently, even if I concede that punishment is in fact intrinsically good in the way Zaibert suggests, I cannot help but wonder whether it is sufficiently good to give us reasons to actually inflict it.
Elsewhere I have argued that the right to punish must be conceptualized as a molecular right made up of Hohfeldian incidents. The critical incident of this right is a normative power to modify the legal or moral boundaries (rights and duties) of a defendant. This is precisely what a court does when convicting and sentencing a particular defendant. But the exercise of this power, I argued, must also be coupled with a privilege or liberty, which accounts for it being permissible (there being no duty not) to exercise this right. I believe Zaibert’s axiological retributivist position can help us account for the liberty to inflict punishment upon a wrongdoer. Put differently, the kind of theoretical work that the axiological account Zaibert proposes can explain only why it would be permissible to punish a wrongdoer, and even an act with positive justification. By contrast, I have serious doubts that it can account for the power to do so and some of its standard features.
To illustrate, his argument provides very little moral traction in terms of allocating the right (power) to punish between different authorities or people. Suppose Amy killed Betty in France. Zaibert could claim that a world in which Amy suffers as a result of her deed is better than a world in which she moves to Brazil and leads a happy life, all else equal. Yet this does not help us very much in determining whether a state entirely unconnected to the offence (e.g., Chile) would be morally justified in inflicting this legal punishment (suffering) to her. Neither can it tell us much about why France would hold a valid claim to do so. In order to account for this normative power, i.e., the proposition that there is more good in the world if Amy is punished than if she is not, seems particularly unhelpful. And this, I have suggested, is the type of question a deontic account of legal punishment needs to illuminate. Why is it that Spain was justified in prosecuting Pinochet for acts he committed in Chile, against Chileans, but not a single murderer who killed someone in Santiago? Why is it that the international community has the right to bring Milosevic, or Bemba to account, but not Theodor Kaczynski, the Unabomber? The problem with Zaibert’s axiological account, it seems to me, is that it tells us nothing particularly significant about these issues (admittedly, nor do many of the standard deontic accounts against which he discusses). Now if the scope of the right to punish is largely determined by the moral reasons we have for punishing a particular offender, and these moral reasons should be largely shaped by the underlying axiology of punishment, it would seem that Zaibert’s argument should contribute to illuminate them. Zaibert already holds that the scope of this right in terms of the severity of the punishment is determined by the reasons that make it good—i.e., that it is deserved. Thus he would have to accept that the extraterritorial scope of this right must also be determined by such reasons.
The second thesis in the book I want to explore here is that we cannot fruitfully think about the moral value of punishment without also referring to the value of forgiveness. This thesis is illustrated in the book through the case of Melville’s Billy Budd, Sailor (an Inside Narrative). Very succinctly, Billy Budd was a good, simple young sailor, who was falsely accused by one of the authorities in his ship before the captain. Billy, who was “pure,” though “naïve,” had a speech impediment. Finding himself unable to respond to the false allegations, “his right arm shot out” (215), landing on his accuser and killing him. Billy was an archetype of purity, simplicity and good will, and yet he had murdered another man, even if a despicable one. The captain, set up a drumhead court on board the ship, which ultimately convicted Billy. Although “the members of the drumhead court pleaded with [the captain] so as to find some extenuating circumstance—and even some measure of mercy—for Billy,” the Captain concluded that “no penalty other than death was appropriate” (216). As the captain lay on his deathbed, long after the events, he murmured “Billy Budd, Billy Budd.”
The account in Rethinking Punishment, Zaibert argues, is the only one aptly suited to account for the perplexity this case creates, its “dilemmatic” character. That is, unlike classical utilitarianism, which unproblematically recommends punishing if the overall level of pleasure will be increased, and unlike deontic retributivism, which would be unproblematically favourable to punishing Billy, Zaibert’s axiological retributivism can appropriately account for the moral residue that obtains both if Billy Budd is punished, as well as if he is not (23). That is, Zaibert’s account consistently accounts for the dilemmatic structure of the infliction of punishment in most circumstances: “whether the conflict is resolved one way or the other, the value of the ‘defeated’ considerations need not thereby disappear” (25). (Arguably, this is less clear, or less relevant in the case of Ohlendorf above.) This type of account would help us better understand, or map, the underlying moral considerations at play, or at least the sources of moral value.
I disagree with Zaibert on three accounts. The first one is that he defends a narrow understanding of forgiveness, neglecting other values which are arguably relevant for a plausible axiology of punishment. Zaibert defines forgiveness (or mercy) as “a very special form of diminishing suffering” (27) that is unconditional, i.e. “valuable in and of itself … independently of the consequences it may bring about” (204). It is a type of phenomenon that can provide a particular organic whole with intrinsic value. Put differently, Zaibert conceives forgiveness independently of other closely associated phenomena, such as repentance, reconciliation, and apologies (202). Forgiveness, he claims, can be valuable even if all of these related phenomena are absent. It seems to me that this narrow understanding of the countervailing considerations that can add value to a world in which a wrongdoer is not punished unduly simplifies the sources of moral value that are relevant for the purposes of understanding punishment, and which in fact can compete with forgiveness as a counterbalancing consideration. It is somewhat perplexing that a book which continually complains specifically about “simpleminded,” “flat,” “narrow” accounts, in favour of a “complex,” “properly” or “richly pluralistic” axiology contends that the underlying or competing sources of value in the practice of punishment are but two.
I believe that there are other sources of moral value that weigh in on the issue of punishment, albeit if many of them are contingently relevant. This is particularly visible in transitional justice contexts. For instance, in this type of situation the value of peace becomes a central consideration which is arguably independent on the value of punishment and of the value of forgiveness, but which would compete (or be in tension with) them. Consider, for instance, the Lomé Peace Agreement in Sierra Leone, whereby an amnesty was considered crucial to prevent a new outbreak of the armed conflict. Arguably, this type of amnesty has much less to do with forgiveness than with the need to maintain peace. Others, may put at the center other values such as reconciliation. Accordingly, South Africa’s Truth and Reconciliation Commission can largely be accounted for on the basis of this value, rather than forgiveness. Last, but not least, it would be odd to suggest that deterrence plays no role in why punishment is good or valuable. Although I would concede that none of these considerations are logically necessary, and I would certainly resist the claim that they all must be included in a deontic account of punishment, they all seem relevant for an axiology of punishment insofar it is concerned with what can add or reduce value in the world.
Second, I find it absolutely plausible, in fact, quite convincing that the value in punishment is sometimes (often) in tension with the value of forgiveness. Zaibert’s explanation of the dilemmatic structure of punishment/forgiveness, as well as the moral residue, is particularly illuminating. Furthermore, I am entirely ready to accept that this underlying tension can be adequately captured neither by the deontic language of rights (as with so many other difficult moral issues), nor by the calculus typically favoured by utilitarians. However, I believe Zaibert’s rendering of these positions is rather ungenerous. For they are precisely concerned about what it is permissible to do even in situations in which it would be morally costly, and even deeply hurtful. For instance, many people working on the ethics of self-defense may agree that it would be permissible for a mother to kill her son if he was unjustly threatening her life, yet no one would suggest that there is no significant moral residue, and even trauma, in doing so. The thrust of their positions would be, I suppose, that even if it is uncomfortable, or deeply painful to punish a particular defendant, it may well also be, all things considered, justified, and it might be morally permissible, or morally necessary to do so. In the case of Billy Budd, as Zaibert somewhat acknowledges, one cannot help to think that the captain should have spared him his life, even if some form of punishment would have been in order. And I believe it would be possible to account for this conclusion on fairly standard utilitarian or deontic retributivist grounds.
Finally, and to repeat, a problem I have with Zaibert’s account is that it says very little, or at least not enough, about whether, given this underlying dilemmatic moral landscape, we ought to punish Billy Budd, or any other defendant (and how much). The turn towards axiology can be useful to illuminate previously unnoticed moral considerations. Granted. Larry Temkin’s book about practical thinking is a superb example of this. However, unlike Temkin’s, Zaibert’s book is about punishment, and the philosophy of punishment must urgently illuminate the practice of legal punishment. In particular, I suggest, it must tell us what we would be justified in doing to a wrongdoer by way of punishment.
Zaibert is deeply aware of this. He acknowledges that his account “does not always generate direct guidelines –either in particular cases or in general” (165). He wants to reject any form of binary distinction between justified and unjustified punishment (164), in favour of a more nuanced, appropriately complex understanding, which is sensitive to the different sources of moral value at stake. In short, he rejects that punishment theory needs to be “exclusively concerned with action-guiding considerations” (167). Nevertheless, he makes the mirror mistake of not being concerned with them at all. That is, by failing to explore the relationship of his proposed axiology with a deontic theory of punishment, his account can in fact tell us very little about when a particular authority (or individual) would be justified in inflicting punishment on a particular wrongdoer.
Zaibert tackles this concern head-on. He recognizes “an undeniable display of progress” in terms of the fact that “the actual punishments inflicted nowadays upon criminal wrongdoers are, at least in theory, much more civilized than, say, those of medieval torture chambers” (168). He doubts, though, that there is a causal connection between punishment theory and this “progress.” In particular, he suggests, that “the fact that the debate between the two central schools of thought regarding the justification of punishment has remained similarly intractable for millennia invites skepticism regarding the supposition that punishment theory, as such, has given rise to specific punishment practices” (169). Thus, insofar as there seems to be no clear causal connection between the philosophy of punishment and the actual practice—in particular, those particular practices that “deserve our support and allegiance” (169)—there is hardly any urgent need for a theory of punishment to be concerned, primarily, with deontic considerations. I think this might be too quick. In particular, I believe that from the claim that there is no direct causal connection between theory and practice we can hardly conclude that there is no causal connection whatsoever. It seems implausible to me that the evolution of the practice of punishment is not significantly shaped by philosophical and moral ideas about punishment, rights, forgiveness, and so on, as well as, more recently, by certain empirical findings. The fact that Zaibert does not propose any better explanation seems to suffice to make this admittedly rather thin point. Thus if we reject this rebuttal, as I think we should, then the missing link between his axiology and a deontic theory of punishment becomes a more urgent problem.
To conclude, Zaibert has provided us with a rich, complex and insightful account on one of the perennial questions in moral and political philosophy. The book is elegantly written, full of nuance, and engaging throughout. Most importantly, perhaps, it forces us broaden our understanding of punishment by signaling the need to focus more—even if not exclusively—on the axiology of punishment, and through this move, to take more seriously our often perplexing attitudes towards punishment and forgiveness. This alone is a remarkable achievement.
* Associate Professor of Law, Universidad Torcuato Di Tella & Fellow, Universidad de Girona/CONICET. I wish to thank Marcelo Ferrante for helpful comments on a previous draft.
 Zaibert takes these details from Leon Goldenshon’s interviews with defendants during post-WW2 trials at Nuremberg, published in Robert Gellately (ed.), The Nuremberg Interviews Conducted by Leon Goldensohn (Knopf, 2004), 389 and ff.
 At the same time, Zaibert recognizes that the type of suffering that contemporary criminal law systems inflict upon offenders (he typically refers to the US systems) “is typically morally repugnant.” In fact, he suggests that this is partly so because it is “too often undeserved” (71, emphasis in the original).
 On this, see famously Stephen Holmes and Cass Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (W.W. Norton & Company, 2013).
 Alejandro Chehtman, The Philosophical Foundations of Extraterritorial Punishment (Oxford University Press, 2010), chapter 2.
 Many people would also claim that, under certain circumstances, there is a duty to exercise this right.
 Admittedly, Cécile Fabre and Massimo Renzo disagree with me on this. Yet they seem to go against the vast majority of the literature and of existing legal practices. See, respectively, Cécile Fabre, Cosmopolitan Peace (Oxford University Press, 2016), 182, and Massimo Renzo, “Crimes Against Humanity and the Limits of International Criminal Law,” Law & Philosophy 31(4) (2012), 443.
 For an exception, see Antony Duff, “Criminal Responsibility, Municipal and International,” 1–27 (unpublished manuscript, on file with the author, 2006).
 Herman Melville, Billy Budd, Sailor, and Other Stories (Penguin Books, 1986).
 See, e.g., Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge University Press, 2004) and Ruti Teitel, Transitional Justice (Oxford University Press, 2000).
 See, e.g., Pricilla Hayner, “The International Role in Justice and Peacemaking in Sierra Leone,” European Council on Foreign Relations (available at: http://www.ecfr.eu/ijp/case/sierra_leone, last accessed on May 17, 2018).
 For a classical rendering of this point, see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press; Oxford University Press, 1994), 48.
 Larry Temkin, Rethinking the Good: Moral Ideals and the Nature of Practical Reasoning (Oxford University Press, 2012).