RETHINKING PUNISHMENT THEORY’S MONISM
[☛ read the rest of the Symposium on Leo Zaibert, Rethinking Punishment (2018)]
Leora Dahan Katz*
I. Introduction
Punishment theory is famously dominated by the question of the justification of punishment: the question of how the deliberate imposition of harm upon others can be rendered permissible and even valuable in the context of punishment. While it by no mean neglects this heavily discussed question, Leo Zaibert’s illuminating Rethinking Punishment moves past this classic focus of punishment theory and centers on the further question: even if justified, does punishment leave anything to be morally desired or addressed?[1] This is a question that is relevant for any theory of punishment, and Zaibert’s assessment that on most theories of punishment the answer to this question is essentially no leads him to a scathing indictment of virtually every contemporary theory of punishment on offer.
In a passionate and well articulated credo, Zaibert demands that punishment theory pay better attention to the complexities and nuance of moral life generally and of punishment more particularly, and to the insights that philosophy outside the context of the punishment literature has to offer. Rightly criticizing a flaw of most all specialized analytic philosophical literatures – the tendency of punishment theory to remain insulated from other areas of philosophy that have much to contribute to its development – Zaibert’s entreaty that punishment theory engage more seriously with other philosophical genres, primarily general philosophy, the study of moral dilemmas and the study of forgiveness is welcome, as is his incorporation of each of these into the punishment conversation.
Drawing on these fields, Zaibert engages in an effort to unsettle the dust that he believes has settled on some of the central regions of punishment theory. Eschewing old binaries such as the retributivism-consequentialism distinction, Zaibert clears center stage for his primary concern, the distinction between monisic theories that tend to reduce the richness of moral life to a single, dominant value or principle, and pluralistic theories that allow for a richer axiology. Zaibert places himself squarely in the latter camp, offering a theory of punishment that might be described as inspired by Williamsonian pluralism with a nod towards ethical particularism.[2] He proposes that we should recognize both the intrinsic goodness of deserved suffering – rejecting the ubiquitous view that suffering must necessarily be “evil” – as well as the intrinsic goodness of forgiveness. The unavoidable clash that he proposes occurs between these two values in the context of punishment render punishment “necessarily dilemmatic” (23), a conclusion which he believes cannot be countenanced by impoverished, monistic views.
While there is much to recommend in Zaibert’s work, both his approach to extant theory as well as the pluralistic alternative he defends raise a number of concerns. First, his leveling of the playing field by marshaling the grandly stated charge of monism against nearly all existing theories of punishment – the proponents of which are varyingly accused of having views that are simpleminded, impoverished and flatfooted – appears exaggerated. As I’ll develop, this charge appears to be at times vacuous, at others unfair. Second, his treatment of deontic retributivism is particularly unforgiving, and it will be suggested that the deontic has far more to offer in the way of recognizing the richness of morality than Zaibert is willing to concede.
Next, I will turn my attention to the pluralistic theory defended by Zaibert in the face of the approaches he rejects, raising two further worries, one minor and one more fundamental: first, the question of whether Zaibert truly succeeds in arguing against the invariant negative value of suffering, and finally, whether his open-ended pluralism is ultimately an approach to punishment that we ought to endorse.
II. Monism Inflated
Though Zaibert does not define monism at the outset, he begins with a concern with those theories that reduce all relevant normative concerns to a single value or duty that is to be pursued (16, 36). A pluralist himself, Zaibert uses the term “monism” not just as a descriptive feature of other views, but as an accusation: monistic theories to his mind must necessarily fail to represent the full richness of moral life and are thus “simpleminded” (16).[3]
Initially, the charge appears well suited to fit the theories of punishment he criticizes, most straightforwardly classic utilitarianism, which entertains only one intrinsic good in terms of which all other putative goods are to be expressed – pleasure, as well as Kantian retributivism. Yet Zaibert then goes on to criticize a broad swath of views, including all deontic retributive theories, as well as communicative theories of punishment, and views as diverse as those held by Scanlon, Nussbaum and Tadros, marshaling the same charge of monism against these theories as well (e.g., 18, 62, 144). His blanket indictment of all such theories as suffering from the same flaw is not only surprising, as suggested by Zaibert, it is further suspicious. And in fact, careful attention reveals that in his attempt to position virtually all extant theories of punishment on the wrong side of the monism-pluralism divide, Zaibert is led to relax his use of the term to a point where it loses the content that gives it its critical force. By the end, Zaibert is dangerously close to equating monism – his chief charge against “failed” theories of punishment – with the charge ‘not my view’ (73, 132, 133), i.e. the particular view that: (1) is pluralistic about punishment, (2) objects to the invariant negative value of suffering, and (3) deems deserved suffering and merciful forgiveness the two primary intrinsic goods at play within the sphere of punishment, which not only coexist but which necessarily conflict. Anything less is “impoverished monism.” But if this is what is meant by monism, then the accusation is of course no charge at all.
Zaibert’s open admission that he means not only those who espouse a general monistic view of morality, but further at those who even adopting a rich pluralistic axiology in general, focus on a single value or agenda within the context of punishment (e.g., suffering diminution or imposing desert) is of no help in this regard. For as he himself critically points out, punishment theory is generally preoccupied not with the question of the totality of values at stake in punishment, but with the particular question of punishment’s justification. More precisely, much of punishment theory is focused on providing what Mitch Berman has called a “tailored” justification of punishment, meaning the justification of punishment in the face of a particular objection to punishment, in this regard, the objection to the deliberate imposition of harm.[4] It is in answer to this question that many theories of punishment focus on one single element or set of elements – whether deterrence, retribution or otherwise – to explain what could possibly have the capacity to license punishment, and to offer a primary account of what might further render it just or good.[5] If monism with respect to this question is a problem, then a pluralistic view would be one that allowed that punishment can be licensed by more than one such goal (e.g., the disjunctive view that desert and deterrence might each independently justify punishment), a view explored by Berman as well. But of course this cannot be the sense of monism that concerns Zaibert: In this regard, he himself is a monist![6]
Thus, his willingness to interpret others’ focus on a “dominant” agenda that “tend[s] to crowd out other considerations” (27) in the context of punishment theory as criticizably monistic is to some extent unfair. Theorists who propose a singular justification of punishment may yet recognize the relevance of a rich array of values that are pertinent to the ethics of punishment (and in fact many do). Of course, this would not undermine his criticism of the failure to engage with these broader question and to seriously explore the relevance of other values for punishment. It would, however, dispel the “true” monistic worry that these theories deny the moral complexity and richness of the phenomenon of punishment.
III. Giving the Deontic Its Due
Perhaps most “striking,” however, is Zaibert’s blanket relegation of deontic retributivism to the wastebasket of monism. While deontic retributivism can clearly take a monistic shape, most influentially of the Kantian variety, it can easily accommodate a pluralistic ethical worldview as well. Zaibert is well aware that consequentialist theories can come in both varieties, offering an excellent account of the distinction to be made between the monistic classic utilitarianism and his preferred pluralistic ideal utilitarianism. Yet he completely ignores the parallel possibility inherent in deontic retributivism.[7]
The misrepresentation of a single facet of retributive theory as all retributivism has to offer begins with his very definition of retributivism. Zaibert writes that retributivism is an “essentially axiological doctrine,” (28) defining even deontic retributivists as “thinkers who believe that because deserved suffering valuable then it ought to be inflicted” (3). Yet this is a false reduction of all retributive theories to one possible set of views. Deontology further admits the possibility that the duty to punish is not immediately grounded in the intrinsic goodness of deserved suffering. This might be, for example, because it bottoms out at further deontic (rather than axiological) claims or because it is not the value of deserved suffering that underlies the duty, but some other value[8] (such as the value of punishing, i.e. the interpersonal act of responding the right way to wrongdoing, that is valuable).[9] These are options not countenanced by Zaibert (15), though they are possible retributivist views that can avoid many of the criticisms he directs at deontic retributivism, and which can provide fertile ground for developing the major pluralistic claims he advances throughout, yet without requiring the “axiological turn” he demands.[10]
One of the primary reasons Zaibert is attracted to axiological rather than deontic retributivism is because of the flexibility he presumes is allowed for within an axiological view, which, while committed to the value of punishment is not committed to any deontic implications of the value of punishment. Only on an axiological view, he contends, the fact that deserved suffering is valuable does not necessarily justify inflicting it, and further allows for meaningful discussion of the implications of unrealized value. These include the significance of the remainders or residues tragically left behind by unrealized value that, for example, make appropriate emotions such as tragic remorse and regret even when one takes the course of action that is, all things considered, justified (23, ch. 4, ch. 8). Zaibert wrongly presumes that none of this is possible within a deontic framework.
Yet though the former may be impossible within a Kantian framework, deontic retributivism allows for as much and more. While it is committed to a deontic position vis-à-vis deserved punishment – that there is a duty to impose it – a more complex deontology than countenanced by Zaibert allows that this pro tanto duty (or obligation, if one prefers) can meaningfully conflict with others within the context of punishment.[11] This opens up the possibility that the conflict can ultimately result in the unjustified nature of inflicting deserved punishment in a given case even from the deontic perspective,[12] while the unmet duty to punish or not to punish can generate the very normative remainders sought after by Zaibert that leave “more to be discussed,” appeasing both his phenomenological worries as well as his worry that moral emotions can find no explanation within deontic theory.
Deontology can further countenance insoluble conflicts of a more robust nature, wherein neither duty overrides, allowing the kind of conflict between desert and forgiveness that Zaibert seeks in axiological retributivism. Neither species of moral conflict is ruled out by the structure of deontic retributivism (though it is ruled out by particular deontic accounts),[13] and the failure to concede the richness that deontic retributivism has to offer is none other than simpleminded.[14]
That is not to say that Zaibert offers nothing in the way of the benefits of axiology in this context. In what reads as the crescendo of the book, Chapter 6 insightfully and powerfully develops the Williamsonian critique of “straightjacketing” (to use John Tasioulas’ term) all normativity into obligations or duty (160-161).[15] While Zaibert’s critique does not sufficiently recognize the elasticity allowed for by reasons that do not culminate in duty, the critique should certainly preoccupy anyone who adheres to a deontological view of the “morality system.” The masterful appeal to the phenomena of moral luck in seeking to upset this adherence is compelling and begs any deontic theory to rethink whether something is not lost when engaging strictly from a deontological perspective.
Importantly, however, this further level of nuance is not necessary for advancing the particular program of the book in defending a pluralistic account of punishment as necessarily dilemmatic, involving the clash between the value of desert and forgiveness (23). While a pluralistic deontology would recast the dilemma in terms of obligations or duties of desert and forgiveness (as in Tasioulas’ view), it can certainly countenance such a dilemma, and make room for the very normative remainders that leave “more to be discussed” sought after by Zaibert exclusively in axiology, rendering complex moral emotions appropriate. Thus one need not take the fabled “axiological turn” to arrive at “the pluralism with which [he thinks only] axiological retributivism is consistent” (29, 175).[16] Although axiology might provide the best starting point for the even more flexible morality than the one just described, this may be a reason against taking such a turn, rather than in favor, as I will shortly discuss.
IV. Invariance
Before turning to address Zaibert’s full blown pluralism, however, it is worth flagging a concern with respect to the first prong of his pluralistic approach, introduced early in the book. In attempting to demystify the intrinsic goodness of deserved suffering, Zaibert raises his objection to what he takes to be a pervasive monism among contemporary theorists: the relation to suffering as invariantly bad. He objects to this invariance thesis, preferring the particularist proposal that suffering has negative “default” value (54): that it need not bear negative value in all cases.
Yet it is not clear that Zaibert’s approach succeeds in rejecting the necessary disvalue of suffering. In fact, looking to both his explication of the organic wholes framework as well as his views on forgiveness, it appears that his view presumes the invariant negative value of suffering – i.e. that suffering is always bad. It rather advances an alternative view according to which suffering, while always of negative value, can also have or add positive value. In other words, Zaibert rejects an exclusivity thesis rather than an invariance thesis.
The organic wholes framework Zaibert relies on to demystify the idea of the intrinsic goodness of punishment supports this reading. Developing this framework, Zaibert quotes Franz Brentano’s point that “the value of a whole is not a function merely of the value of the parts of the whole. ‘Goodness also lies in the relations which are exhibited within the whole.”[17] He then draws from G.E. Moore, who asserts that an organic whole “has an intrinsic value different in amount from the sum of the value of its parts”[18] (41). This framework is used to develop the idea that even when only the suffering of a wrongdoer is added to the world, the world may nonetheless have greater value than a world without. Yet neither of the formulations cited above supports the further argument that the value of the part itself is in some way altered by being part of an organic whole – i.e. that the disvalue of suffering is lost or cancelled. In coming to deal with the question of punishment, both theorists in fact take for granted the “evil” of wrongdoing as well as the “evil” of the wrongdoer’s suffering (42, 43). The appeal to organic wholes is precisely intended to open up a space for the possibility that even granting the invariant negative value of these, a whole which contains both evils (just world) can nonetheless be more valuable than a whole that contains only the former (world-with-impunity). This appears to be because the relation between parts of the whole can add value to the whole in such a way as to either outweigh the negative value of the part, or (if this consists in objectionable moral mathematics) to render it somehow irrelevant to the value of the whole in which we are interested.
Further, denying the invariant negative value of suffering would seem to be at odds with Zaibert’s defense of the necessarily dilemmatic nature of punishment. Per Zaibert, forgiveness is intrinsically valuable and is in terminal conflict with the intrinsic value of deserved punishment. Yet if forgiveness is always valuable, this must be because “humaneness” or the diminution of suffering for the right kind of reasons is valuable, which seems to presuppose the disvalue of the very suffering we aim to reduce. For how could the sympathetic refusal to impose something of exclusively positive value be necessarily good?[19] While this challenge is perhaps not insurmountable, it requires that Zaibert give an account of the value of forgiveness that is not reliant on the disvalue of suffering.
Yet in what is perhaps the greatest lacuna of the book, Zaibert offers no account of the value of forgiveness – no reason to accept that it is necessarily valuable. The demand for such an account may strike Zaibert as a demand for a principle of the deontic variety where none can (or should) be offered (ch. 7.3). But this is false: the demand is not that he offer the singular account of the value of forgiveness that would allow us to neatly schematize its implications. It is rather a demand for an account of what can make forgiveness valuable under any circumstances (without relying on the badness of suffering). Yet Zaibert offers nothing in the way of such an account. He merely appeals to the organic wholes framework to assert that an organic whole with forgiveness can have more value than without. Yet the appeal to organic wholes is entirely unhelpful in this context since the framework only has the capacity to open up the possibility that a whole might be more valuable with a part that in isolation bears disvalue than one without. It cannot be used to defend the claim that a world has such value. Its invocation here thus does not provide a defense of the value of forgiveness, but rather an intuitional stop – marking the point at which no further arguments are offered.[20] But the question of how to defend the value of one organic whole over another is precisely one of the problems that persists within the pluralistic position defended by Zaibert, a problem to which I will return shortly.
Before moving on to this more grave problem, however, it warrants mentioning that while Zaibert may be objecting to the exclusivity thesis rather than the invariance thesis as suggested, the former is sufficient to advance his broader views in defense of the intrinsic goodness of deserved punishment as well as the necessarily dilemmatic nature of punishment, and in this sense this is only a minor concern.
V. Pluralism
A more serious worry with the pluralistic view defended, however (and one that is not unappreciated by Zaibert), relates to the above-mentioned open-endedness of the axiological turn that Zaibert recommends punishment theories take. While it has already been demonstrated that deontology has the resources to allow for a pluralistic richness not recognized by Zaibert, he nonetheless defends a more extreme pluralism of a kind that is less at home within deontic systems. Though only two values pertaining to punishment – desert and forgiveness – are discussed (somewhat surprisingly), the possibility of infinite relevant values whose relative import cannot be determined is entertained, in a world suffused with insoluble dilemmas. Zaibert acknowledges the practical difficulties introduced by such a view, but misdiagnoses its primary weakness as the problem of messiness (ch. 6). The central worry, however, is not that a morality of the kind he propounds is excessively messy. This is to deeply understate the gravity of the concern. The worry is that the view is impotent – incapable of bearing fruit with respect to the question of how one ought to act.
Zaibert is of course right that if the moral world is “messy,” we should not posit a singular duty to simplify it. But while Zaibert’s critique of the “ledger” method of morality (vividly dramatized in Darwin’s marriage ledger, 157) is instructive, the question is what he offers as an alternative. The search for an answer appears to offer nothing more helpful than brute intuitionism: the organic whole framework coupled with a deep form of pluralism that essentially invites us to ask the following question with respect to each and every case – is the organic whole that includes x better than the organic whole that does not? But of course, if the answer to this question were apparent, we would not be in the current predicament to begin with. And no indication is given as to how one might go about answering this question.
Zaibert may retort that this is to return to the deontological obsession with the question of what how we ought to act, to the detriment of other important questions for moral theory. Yet it is one thing to say that the question of what to do is not all there is to moral inquiry, and quite another to take an axiological turn that renders moral theory incapable of offering any recommendations as to how to act. While the value of theoretical inquiry independent of its ability to give guidance should not be disregarded, the structurally guaranteed inability of a theory to do so should certainly give us pause. The messiness of morality surely invites messiness into theory, and Zaibert’s warnings against fallacious simplification ring true. Yet adopting an impotent approach to morality cannot truly be “the way forward.”
In conclusion, while there is much to recommend in Zaibert’s rich approach to punishment as well as in his insightful critiques of other views, it is perhaps wiser to stop short of taking the looming “axiological turn,” which is both unnecessary to adopt a pluralism worth endorsing, and to take things a shade too far. Nonetheless, the debate over whether this is a turn we ought to take will no doubt be a source of fruitful critical reflection and discussion, driving punishment theory precisely in the direction that Zaibert intends to steer.
* Van Leer Jerusalem Institute, Hebrew University of Jerusalem.
[1] Leo Zaibert, Rethinking Punishment (2018).
[2] See, e.g., Bernard Williams, Ethics and the Limits of Philosophy (2006). Jonathan Dancy, Ethics Without Principles (2004).
[3] He borrows here Bernard Williams’ use of the term, meaning “having too few thoughts and feelings to match the world as it really is.” Bernard Williams, “A Critique of Utilitarianism,” in J.J.C. Smart and B.A.O. Williams, Utilitarianism: For and Against (1973), 149.
[4] Mitchell N. Berman, “Two Kinds of Retributivism,” in Philosophical Foundations of Criminal Law, R.A. Duff & Stuart Green eds., (2011), 435.
[5] I forgo here a detailed analysis of whether this accurately represents Moore’s early work, and whether Moore’s further appeal to the distinction between “internal” and “external” contribute to understanding desert’s role in the ethics of punishment. See Zaibert, 116. It does explain, however, how other values can be mere “happy surpluses,” as regarded by Moore, in this context, though they remain of genuine significance within the broader ethics of punishment. Michael Moore, Placing Blame (1997), 28.
[6] He does not admit that anything other than desert has the capacity to license punishment.
[7] An oversight made all the more odd given his direct reference to pluralistic deontological literature including W.D. Ross, The Right and the Good (1930); Bas Van Fraassen, “Values and the Heart’s Command,” Journal of Philosophy 70 (1973): 5–19; David O. Brink, “Moral Conflict and Its Structure,” Philosophical Review 103 (1994): 215–247. Of course, none of these relates to “proper” pluralism as narrowly circumscribed by Zaibert.
[8] In any event, the deontic retributivist need not, despite Zaibert’s protestations, grant the intrinsic goodness of suffering.
[9] Indeed Zaibert’s view all but ignores the moral significance of relational aspects of punishment, which I take to be at the core of its retributive justification. See my Response Retributivism.
[10] This is not to deny that axiology might provide further flexibility, but it is to deny that defeasible punishment, moral conflict and normative remainders have no place outside of axiology as alleged by Zaibert.
[11] See, e.g., Ross, The Right and the Good, wherein he offers the structural possibility of conflicting prima facie (in his terminology) duties. Though he does not allow for insoluble dilemmas, he does allow for the possibility that the moral force of the defeated duty is not extinguished, resulting for example, in the appropriateness of apology.
[12] Thus Zaibert’s charge that the “deontic retributivist cannot possibly countenance [cases wherein forgiveness outweighs desert]: for if deserved punishment is valuable, and it is stipulated that there are cases in which inflicting said deserved punishment costs us nothing, she should see no reason whatsoever why we should not simply go ahead and punish the deserving” emerges as false. Zaibert, 31.
[13] Endorsing the existence of such dilemmas would presumably come at a higher price for the deontologist given the difficulties that they present for classic deontic logic.
[14] Nowhere is his dismissal of deontic views more absurd that in his insinuation that only the axiological has the resources and motivation to deal with the indefensible slavery-as-punishment exception that lays dormant in the US constitution. Zaibert, 169-71.
[15] Bernard Williams, Ethics and the Limits of Philosophy, 180; John Tasioulas, “Mercy,” Proceedings of the Aristotelian Society 103 (2003): 126.
[16] If all this is right, the promise of the reconfiguration of the landscape of punishment theory along the lines of the distinction between the axiological and the deontic is proves false as well (15). Both carry multifarious possibilities, and identifying a view with one camp or another does not yet determine whether the view is monistic and to be rejected on the suggested grounds
[17] Zaibert quoting Chisholm’s citation od an unpublished manuscript of Brentano in: Roderick M. Chisholm, Brentano and Intrinsic Value, (1986), 70.
[18] G. E. Moore, Principia Ethica (1903), 87.
[19] This is further bolstered by Zaibert’s claim that punishment necessarily involves “dirty hands” – unavoidable wrongdoing. It is not clear how he can make such a deontic claim. For given his axiological stance, if the conflict plays out in favor of punishment, while it may be bad to forgo forgiveness, it is not wrongful. Alternatively, if neither value overrides, per ideal utilitarianism, it would seem that given that there is no single “best” course of action, the right thing to do would be to act in one of the two ways allowed for by the conflict (to act on either disjunct), and once again, there would be no wrongdoing involved. In any event the point remains: if the value of the suffering itself were to lose its disvalue, it is not clear how Zaibert could claim that punishment involves dirty hands.
[20] For further instances, see, e.g., Zaibert 83, 128-29.
References
Berman, Mitchell N. “Two Kinds of Retributivism,” in Philosophical Foundations of Criminal Law, R.A. Duff & Stuart Green eds., (2011), 435.
Williams, Bernard. Ethics and the Limits of Philosophy, 180; John Tasioulas, “Mercy,” Proceedings of the Aristotelian Society 103 (2003): 126.
Zaibert, Leo. Rethinking Punishment (2018).