LEO ZAIBERT’S RETHINKING PUNISHMENT: AN ILLUMINATING VOYAGE

[☛ read the rest of the Symposium on Leo Zaibert, Rethinking Punishment (2018)]

Margaret Martin*

In Rethinking Punishment, Leo Zaibert identifies what he sees as a fundamental feature of punishment: “Insofar as whatever else punishment seeks to do, it seeks to make wrongdoers suffer (by somehow diminishing their well-being or by visiting upon them something they do not want) …” (1).[1] While there is not universal agreement amongst theorists about this proposition,[2] Zaibert is correct to suggest that this starting point is widely shared. The problems that punishment presents theorists with are then shaped by this foundational assumption about its purpose. The problems, Zaibert stresses, have both a theoretical and a practical dimension, which he illustrates by introducing a distinction between “axiological” and “deontic” commitments. Zaibert notes that the difference between these two types of theories, while well known in moral theory circles, has gone undetected by criminal theorists, to the detriment of the field. Axiological claims, Zaibert explains, are claims about “value and goodness of all varieties,” while deontic claims “refer to considerations that lead us to act in certain ways” (13). Retributivists are committed to the axiological proposition that “deserved punishment is intrinsically valuable,” while consequentialists deny this proposition (15). Once we see this point, we can begin to find a way out of the “deadlock” between retributivists and consequentialists. We can also see the problem with “mixed justifications,” which combine claims of both kinds, that they generate “more heat than light” (12).

In addition to illuminating the debate in criminal theory, the distinction between axiological and deontic commitments is also helpful for readers to comprehend Zaibert’s own position. Unlike many of his interlocutors, he is interested in the theoretical, or axiological, problem of punishment. Zaibert adds that theoretical accounts do have an impact on practical problems, but in the indirect manner suggested by Bernard Williams: the aim of such theories is not to generate outcomes to practical problems, but rather to provide “other ways of thinking about them” (2). We must, Zaibert insists, reject simplistic “monism” (theories that ask us to prioritize a single value) and instead embrace the possibility of value pluralism. In essence, Zaibert states, we must accept the possibility that a “potentially infinite” number of things may be “valuable in themselves” (34). Notice that this possibility undermines the prospect that theoretical accounts will be able to illuminate practical problems in the manner suggested by Williams. The set of relevant variables may prove to be “unmanageable” (29). Zaibert suggests this worry does not impact his account, given that he opts to focus only on the tension between punishment and mercy (30). But, of course, this move gives theorists only temporary reprieve from the worry about unmanageability. If permanent reprieve is not available to us, then we cannot pretend that it is. I agree with Zaibert’s statement that “contemporary punishment theory is unable to cope with the complexity of moral thought and moral life” (4).

Zaibert identifies the tension between punishment and mercy, one that quickly arises once punishment is defined as “an infliction of suffering.” First, Zaibert argues that “Punishment is thus immediately revealed as generating the theoretical problem of having to bring justice through suffering,” adding that there is “obvious value in diminishing suffering in the world and obvious value in imparting justice” (3). Punishment increases suffering via punishment; mercy, on the other hand, can reduce suffering (3). Once mercy is introduced, a theoretical problem emerges: “Theoretically speaking, then, punishment presents us with a moral dilemma: Which of these conflicting values is weightier?” (3). It is worth underscoring that this way of presenting the dilemma is aligned with consequentialism rather than retributivism.[3] We might also ask if it matters to Zaibert whether the subject who is being punished believes that punishment is suffering and/or actually suffers. I concede that most will agree that it is, but to the extent that the account turns on subjective beliefs of participants, it may prove to be slightly less stable than it may appear.

In what follows, however, I will not focus on these worries, in large part because I agree that punishment and mercy sit in tension and any theoretical account is richer when this relationship is accounted for. Instead, I will explore Zaibert’s eighth and final chapter, titled “The Jugglery of Circumstances: Dirty Hands and Impossible Stories.” After spending seven chapters skilfully exposing and criticizing the assumptions that inform much of the debate in criminal theory, Zaibert turns our attention to Herman Melville’s classic work, Billy Budd, Sailor, in order to bring criminal theory into contact with the complexity of lived experience. Specifically, Zaibert seeks to “complicate and enrich punishment theory by taking seriously the ‘insides’ of the lives both punishers and punishees, forgivers and forgivees” (211). He illustrates “the ways in which these insides relate to an axiological universe that is far richer” than recognized by many participants in the debate (211). Zaibert relays Melville’s tale beautifully – I will offer but the briefest sketch, adding details as they become relevant.

In this famous story, Melville takes us aboard the Bellipotent. It is aboard this ship that Billy Budd, a handsome “good-natured” young sailor, has a “fated” encounter with master-at-arms, John Claggart. Claggart, we are told, is generally in a “superior capacity,” but he nevertheless harbours intense jealousy toward young Billy.[4] These feelings become known when Claggart concocts a lie about Billy – he tells the ship’s captain, Captain Vere, that there is a dangerous sailor aboard the ship.[5] Vere, to his great credit, does not believe that Billy is dangerous. Vere decides to address the problem by bringing Billy and Claggart together.[6] While Vere’s intentions are noble, the outcome is regrettable. The reader quickly learns that Billy is unable to defend himself against the brazen accusations due to his speech impediment. Instead of responding verbally, Billy reacts by delivering a fatal blow to Claggart. The single deadly punch is “quick as the flame from a discharged cannon at night.”[7] Bearing witness, Vere declares, “Struck by an Angel of God! Yet the Angel must hang!”[8]

The tension between punishment and mercy is palpable: both appear to be appropriate moral responses to the predicament. Vere’s words are ominous because it is Vere who must decide how to proceed. Indeed, he shoulders great responsibility in the unfolding set of events. As Zaibert notes, not only did Vere bring the two parties together, he inadvertently prompted the violent response with his “fatherly” attempt to help Billy (215). But, more importantly for our purposes, Vere also chose to hold a trial aboard the ship immediately, in full knowledge that Billy would likely be found guilty (“the Angel must hang!”). The other course of action, which he forgoes, would have been to wait and hold a trial once the Bellipotent arrived at shore.[9] If Vere had opted for this path, at least there would be a chance that mercy would triumph and Billy would be spared. It is precisely because “military duty” must grapple with “moral scruple” that a series of questions readily jump to mind (216). Why, for instance, did Vere make this choice? How should we understand the complex interaction between mercy and punishment in this instance? What, if any, are the lessons that can be teased out of this moral tale?

Vere’s pronouncement that “the Angel must hang!” serves as an entrance point into Zaibert’s analysis. Vere is immediately aware of the tragic dilemma he faces: “from [Vere’s] perspective, it would have been wrong not to punish Billy, but it was nonetheless wrong to punish Billy too, even if he was justified in punishing him” (223). All pathways implicate him in some kind of wrongdoing. Vere is faced with a tragic choice. Zaibert draws our attention to the fact that that this is “a dilemma of the sort that a simpleminded utilitarian or a simpleminded deontic retributivist cannot even countenance” (223). Both of these positions suggest that there is a single right answer to such problems. But this is not always the case, and Zaibert, I believe, is correct to identify the case at hand as one such exception. As Zaibert notes, the orthodox interpretation of Billy Budd relies on straight-forward utilitarian calculus, which grossly oversimplifies the complexity of the literary work, and the complexity of life more generally (216).

In my view, much turns on whether Melville’s account contains universal lessons, or whether the lessons are confined to tragedies of this magnitude. Zaibert makes it clear that he does not believe the lessons are limited in this way (223). I agree, in general, but my reading of Billy Budd diverges from Zaibert’s in an important respect. I worry that Zaibert’s reading places too much emphasis on the subjective emotions of Vere, which makes it difficult to draw out universal lessons. While he appears to address this worry, in part by re-introducing the idea that punishment involves the infliction suffering, I think that this move creates as many problems as it solves. Let us begin with Zaibert’s reading before assessing the way that he works to draw general lessons from what appears to be quite an extreme tale.

Zaibert argues that we are able to find evidence of the complex nature of the event by exploring Vere’s emotional response. Moments before his death, Vere is heard to murmur “Billy Budd, Billy Budd.”[10] The narrator then tells us “that these were not the accents of remorse would seem clear from what the attendant said to the Bellipotent’s senior officer of marines, who, as the most reluctant to condemn of the members of the drumhead court, too well knew, though here he kept the knowledge to himself, who Billy Budd was.”[11] Zaibert convincingly argues that we should not read the claim that he had no regrets as a “narrative fact”: we have no reason to trust the attendant’s opinion (220-1). Zaibert, I think, is correct to insist that Vere experienced remorse or something akin to it. Vere’s emotional distress, which is apparent in his last moments, has been constant. Zaibert explains:

It can scarcely be doubted that Melville portrayed Vere as intensely and deeply distressed by what transpired on board the Bellipotent, and it is hardly an exaggeration to say that Melville wanted us to see the sense in which Vere was downright destroyed: he was after all “no longer living.” (222)

According to Zaibert, the emotional response gives us insight into the complex nature of the moral problem Vere faced. Zaibert insists – correctly, in my view – that “there is little reason to think that had Vere actually forgiven Billy, he would not have still been deeply affected by the events on board the Bellipotent” (220).

Vere was faced with a tragic dilemma where either path of action would lead to a certain kind of wrong (223). Even if wrong cannot be avoided, regret and remorse can still be felt. We can see this point more clearly when we recognize that Vere’s emotions are moral in nature: they flow from a moral choice he has made (unlike, for instance, emotions that are experienced when one deals with the aftermath of an earthquake) (222). Remorse, anguish, and regret remain appropriate responses to moral situations. They also reveal the way in which such dilemmas “taint” us. Moreover, Zaibert argues that, although Vere chose one path, the moral claim of the other path – the path of mercy – never lifts (228). We are left with a “remainder”: “moral taints have a way of sticking to ourselves, or, in other words, they have a way of remaining: they constitute remainders” (227). Again, Vere’s deep emotional response is evidence of this point. Zaibert observes that if we really are merely simpleminded utilitarian calculators, there is no reason to feel such pain (222). This is yet another strike against “simpleminded utilitarianism,” which (as mentioned) is both the orthodox reading of Billy Budd in addition to being one of the most prominent theories in the debate about punishment.

It is important to note that, for Zaibert, the depth of Vere’s feelings of remorse signal two things. First, as noted above, it indicates the presence of a deep moral conflict that is tragic, given that wrongdoing was unavoidable. Second, Zaibert tells us that we can deduce that Vere is a man of decent character. Indeed, Zaibert insists that only those who are “clean” or “more or less clean” can experience remainders or moral “taints” (227). One of the upshots of his analysis is that people like Adolf Hitler cannot experience remainders because they are wholly unclean (227). Hitler could not get his hands dirty, so to speak, “because for they are dirty all over already” (227).

It should now be clear that Zaibert’s position is deeply rooted in the subjective experiences of the agent, which turn, in part, on the personal characteristic of said agent. I worry that this subjective turn will make it remarkably difficult, or impossible, for Zaibert to transcend the peculiarities of tragic moral dilemmas in order to defend the general claims about the nature of punishment. How can Zaibert defend this position when so much turns on elements that are wholly subjective? While I am open to the possibility that punishment is more problematic than often supposed, I remain unsure about the quick extension of Zaibert’s argument at this juncture, precisely because of the subjective turn his account takes.

When Zaibert claims that all punishment involves dirty hands, he sometimes equates the concepts of “moral taint” and “dirty hands”: one has dirty hands insofar as one is morally tainted by the decision to punish (226). If this is the connection he is making, the implications are problematic. As we saw above, not everyone is tainted by tragic situations because not everyone is “clean.” Again, Hitler is incapable of being tainted because he is morally abhorrent. This means that the problem of dirty hands does not affect all agents caught in tragic dilemmas, but only those who are relatively morally clean (227). In short, we need a relatively clean person who must then do something inescapably wrong in order to become tainted. Notice that there is another variable at play: Vere is not only “relatively clean,” he is also wise enough to grasp the moral complexities of the situation, as Zaibert notes (223). A relatively clean person, who does not have Vere’s intelligence, may not grasp the moral complexity here. Alternatively, the punisher may be intelligent, but jaded: he may have punished offenders with such frequency that the intensity of his emotional response to tragic scenarios has been dulled or even annihilated over time. And, of course, if one is only potentially tainted by tragic choices, this further shrinks the scope of the analysis. Can Zaibert overcome these obstacles in order to say something about the nature of punishment more generally?

Zaibert does not share my worry. He is confident that “Vere’s predicament is not meant to be a model for the predicament each and every punisher must face” (233). The conclusions he hopes to draw about punishment are far-reaching. Indeed, he insists that the decision to punish is always morally problematic: “No punisher, no matter how just, is ever fully morally innocent” because “a punisher is in the business of making people suffer” (231). This conclusion holds even if it is deserved (231). Zaibert explains:

I think that it would be salutary if punishment theorists recognized that when we punish – even if we are justified in punishing – we are losing part of our innocence, in a way structurally similar to Vere’s (again, even if not quite so dramatic). (231)

Punishment always involves dirty hands because it involves the infliction of suffering. Does this solve the problem? I suspect that it does not, but let me explain Zaibert’s position in greater detail before assessing it.

Zaibert recognizes that his analysis may be overly contingent (234). He recognizes, for instance, that not all cases spark the same emotions. If Claggart was punished, and not Billy, we would not expect the same emotional reactions (234). Zaibert acknowledges that “not every occasion in which we justifiably inflict punishment taints us in the same way or to the same degree,” but he nevertheless insists that the conflict is present at the axiological level (234). That is, the problem stems from the original axiological conflict between punishment and mercy. And so, we have returned to Zaibert’s initial claim: punishment produces suffering; mercy relieves it, and thus the act of punishing always involves dirty hands because of its link to suffering (a point just canvassed above). The pull of mercy is ever-present insofar as a reduction of overall suffering is viewed as a good thing (3). The point, as I now see it, is that justified punishment necessarily involves a moral worry (inflicting suffering). This can leave a “remainder” or “taint” because it brings about more suffering in the world. Whether we perceive the problem turns on the “intensity” of the conflict (234). According to Zaibert, the difference between Vere’s scenario and typical ones is a matter of degree and not kind.

While this is a promising pathway insofar as Zaibert hopes to universalize his findings, my worry is that this move eclipses the analysis about Vere. Notice that the nature of the claim has shifted significantly: if the moral problem is that punishment produces more suffering in the world, the source of the “dirtiness” flows from Billy’s suffering; whether or not Vere is tainted now strikes me as irrelevant to the question of “dirty hands.” In short, the claim that one’s hands are dirty turns on the objective observation that suffering has been produced by an act of punishment; we are no longer looking to identify a subjective emotional experience that could be understood as a “taint.” From this perspective, it does not matter who the punisher is, nor for that matter, who happens to be the punishee.

But, in the process of deflecting concerns about “contingency,” Zaibert acknowledges that who is punished does matters: the “suggestion that those who punished, say, Ohlendorf, should be as emotionally devastated as Vere was for punishing Billy is rather implausible, if not perverse” (234). However, Zaibert insists that the conflict between mercy and punishment remains, even if it is negligible: “the resultant intensity of the axiological conflict is extremely low, to the point of being negligible – and this negligibility then manifests itself at the emotional level as well” (234). If this is so, we might have a conflict, but it is much harder to make the case that we are dealing with a problem of dirty hands in the morally relevant sense that Zaibert initially suggested. The dirty hands problem comes into view with the help of Melville’s tale, but it slips from view once we change the cast of characters.[12] Notice, also, that Zaibert once again assumes that the intensity of emotional reactions track the intensity of the underlying conflict in all cases. Above, I have cast doubt on this possibility. Even if we assume that a conflict exists in all cases, can the degree of the conflict alter the kind of conflict that is present? Is it plausible, perhaps more plausible, to argue that a change in degree produces a change in kind? Tragic dilemmas may prove to be fundamentally different from other acts of punishment.

I suggest that the real centre of gravity of the drama is Billy’s character. If Billy wasn’t an angel, but a devil, it is not clear that Vere would (or should) be tainted. Zaibert’s account leads us in this direction as well: it is not the mere infliction of suffering, but who the suffering is inflicted on that alters the “intensity” of the conflict. If this is so, perhaps we should wonder whether the nature of the punishee, rather than the emotional reaction of the punisher or the mere infliction of suffering via punishing, holds the key. After all, if Billy was not an angel, but a devil, Vere’s reaction would have been different. If Melville’s texts hold any insights about punishment qua punishment – perhaps they will emerge if the priorities are re-arranged to place Billy’s character at the centre of the analysis. I suggest that this approach would, in fact, be the most fruitful. In what follows, I will chart a path that diverges from Zaibert’s chosen route. I will begin by offering a different interpretation to a seemingly obscure passage in Billy Budd – a passage where Billy is portrayed as a devil and Claggart, an angel.

Zaibert turns our attention to a report of Claggart’s death in a weekly naval chronicle called “News from the Mediterranean”:

On the tenth of the last month a deplorable occurrence took place on board H.M.S. Bellipotent. John Claggart, the ship’s master-at-arms, discovering that some sort of plot was incipient among an inferior section of the ship’s company, and that the ringleader was one William Budd; he, Claggart, in the act of arraigning the man before the captain, was vindictively stabbed to the heart by the suddenly drawn sheath knife of Budd  … The enormity of the crime and the extreme depravity of the criminal appear the greater in view of the character of the victim, a middle-aged man respectable and discreet, belonging to that minor official grade, the petty officers upon whom, as none know better than the commissioned gentlemen, the efficiency of His Majesty’s navy so largely depends  … The criminal paid the penalty of his crime. The promptitude of the punishment has proved salutary. Nothing amiss is now apprehended aboard H.M.S. Bellipotent.[13]

Claggart is presented as a valiant leader who has been slayed in an act of unprovoked aggression by one morally depraved inferior, William Budd. Melville then notes that, while this publication is “now long ago superannuated and forgotten” nevertheless, it “is all that hitherto has stood in human record to attest what manner of men respectively were John Claggart and Billy Budd.”[14]

Zaibert bemoans the fact that here we have an inaccurate reproduction of the facts as we have come to know them: “For my purposes, however, it would have been even more useful had the report not been marred by obvious factual errors” (238). Zaibert takes the misrepresentation to signal the truncated nature of news reports, which can never fully capture the moral complexity of tragedies of the kind detailed in Billy Budd. Zaibert explains:

What transpired on board the Bellipotent cannot be captured in a news report; to suppose that it could is to fail to appreciate both the complexity of the situation and the inherent limitations of chronicles. To the extent that a news report may succeed in capturing these events, to that extent it ceases to be a mere news report. (238)

On this reading, the content is inaccurate because of the nature of new reports. Instead I raise the possibility that the facts were intentionally misrepresented. It is, after all, plausible that the report could state the facts without getting into detail. The report easily could have read: “William Budd punched master-in-arms John Claggart. Claggart died and Billy was tried, convicted, and executed.” Why did the report contain falsehoods instead of an abbreviated version of the truth? To answer this question, it is useful to inquire further: who falsified the report and why?

The answer to the “who” question may very well be Vere, but this is mere speculation. The “why” of the question is the important inquiry. To determine why the report may have been intentionally falsified, we must ask who the intended audience was. The primary audience of “News from the Mediterranean” was surely seafarers: sailors and captains. It is highly plausible that the aim of the falsified story was to assure all seafarers that, if and when problems arise, justice was served and served swiftly. Not only would the revised version of the story give comfort to sailors (their captains will keep them safe!), it would also serve to discourage sailors from instigating uprisings (they will meet their deaths quickly if they choose to disturb the peace!). The message, of course, will not even be perceptible to the reader – one can only see it if one knew what really occurred on the Bellipotent. Melville has, of course, given us this inside information. Notice that the story will make sailors feel safe in yet another way: the falsified report reinforces the view that bad people do bad things to good people, and bad people are punished by a system that is good. Captains, of course, will also face an easier task if sailors enter ships with these shared beliefs about the workings of legal justice at sea.

Now we can begin to see that the falsified story serves the double purpose of safety and deterrence. The story operates as a kind of noble lie: it is a falsehood told in the name of the greater good. The nature of the vision of the good that Vere may very well have been committed to is becoming clearer – and just as Billy was sacrificed in its name, so too is truth in this instance. It is true, of course, that no one would be comforted by the real story: a good person, by the forces of chance and circumstance, killed a bad person, and as a result he was forced to walk the plank in the name of justice.

The (intentional) misreporting of the story ripples through Melville’s narrative, returning the reader’s mind to the existence of other reports about other uprisings. If the events on the Bellipotent have been misreported, can we be certain that the accounts of earlier uprisings were accurate? We now have cause to wonder. From the point of view of the unfolding action, this raises two possibilities: Vere may know or suspect that the stories are inaccurate, and hence he does not give them much weight in his decision-making process. Alternatively, he believes they may be accurate, but still gives them limited weight. I suspect little turns on these alternatives once it becomes clear that an uprising on the Bellipotent seems implausible: the sailors are on Billy’s side; hence, it is unlikely that opting for mercy over punishment would lead to a riot. Billy, it seems, was not sacrificed for the sake of the safety of Vere’s ship (in a clean cost benefit analysis) – a point Zaibert convincingly makes (216). Nor was his death the result of Vere’s blind commitment to legal formalism (a point that Melville makes clear throughout).

Now we can see that it was a real possibility that Billy was sacrificed for the sake of the enterprise of sailing and for the good of all sailors and all captains. It is quite possible that Vere believed Billy had to die for the sake of the safety and order of hypothetical future ships sailing at unknown times to unknown places. It is a commitment to the good of the universal seafarer realized through the application of laws in a strict fashion. This is perhaps the reason that he never wavered from his chosen course of action, despite the attempts by others to steer him down a more merciful path.[15] Vere’s starry-eyed idealism, and his commitment to a sense of duties borne out of it, made the path of action clear.

Notice, also, that the effects of the false news story have implications that take us beyond Billy’s execution, and even beyond the laws of the sea. Melville has given us good reason to worry that “justified” punishment in accordance with law is not all that it may appear to be. After all, if the report is false, can we be sure that the cases we hear about in the news have not misrepresented the truth? In order to see what is true and what is false, we must know the facts, and not simply the facts as viewed through the lens of the law. If we return to reflect on all that Melville has told us, we can see that the law itself has a tragic dimension – one that is mirrored by the “fated” tragedy that he so carefully crafted. So, in my view, there is a universal lesson that emerges from Billy Budd, but it is slightly different from the one Zaibert posits.

From the legal perspective, Billy’s case is an easy case. There is a guilty act and a guilty mind (217). But from a moral perspective it is a hard case, a tragic case. One source of the tragedy is that the law itself requires us to partake in this kind of “authoritative” abstraction – casting aside details about character and context. Theologian John S. Dunne, in his book The City of the Gods, pinpoints the relevant aspect of law that concerns us here:

Perhaps it has always been the function of law, whether in ancient or in modern times to measure a man by his deeds rather than by his person, for instance to condemn him to death for his misdeeds in spite of any effort he makes to renounce his past by repentance.[16]

Dunne notes that this aspect of law has been viewed differently through time.[17] In Melville’s time, and indeed during ours, this reality may prove to be uncomfortable. Perhaps we, like the readers of the “News from the Mediterranean,” don’t inquire further because we want to believe that law is on the side of good, and that we too are on the side of good. And maybe we are not always passive recipients of this “noble lie,” but active participants, insofar as we crave simplicity and certainty more than we desire truth. Zaibert’s arguments demonstrate as much: he masterfully demonstrates that many of the dominant thinkers in criminal theory intentionally or inadvertently offer explanations that turn on the presence of a single value. Even those trained to navigate complexity are continually drawn to simplicity, even though the cost of doing so is apparent. Rethinking Punishment is a powerful call for theorists to abandon this habit.

Having said all of this, I nevertheless agree with Zaibert’s claim that attending to Vere’s emotional state is essential if we are to understand the story, and I agree with the vast majority of his claims on this matter. And even if one believes that the common good is best served through the judicious application of the law, as I have suggested Vere did, this commitment does not answer the question of what one ought to do in any given case. Had Vere been merciful towards Billy – had he made one exception – the system would have likely plodded on. No doubt Zaibert is right that Vere would have suffered in this case as well given that both options involve wrongdoing (223). But at least Billy would have been spared. Perhaps one reason why Vere’s suffering was so profound was that he came to see that things are not as clear as he once thought. In the spirit of William’s insight, perhaps Vere’s “duty” tells him how to think about a practical problem, but it may not tell what we must do. Perhaps he gleaned that his duty was “axiological” and not “deontic,” as he had originally thought. Even if I am wrong about Vere’s internal thought process, we can still see how illuminating this distinction that Zaibert makes is, and how helpful it can be, when making important practical decisions. Sometimes it is the difference between life and death.

* Western University, Faculty of Law.

[1] All “in text” citations refer to Leo Zaibert, Rethinking Punishment, New York: Cambridge University Press (2018).

[2] One notable exception is Alan Brudner. See Alan Brudner The Unity of The Common Law: Studies in Hegelian Jurisprudence, Berkeley: University of California Press (1995), chapter five.

[3] Supra, note 2.

[4] Herman Melville, Billy Budd, Sailor, and Other Stories, New York: Penguin Books (1986), 317.

[5] Ibid., 344.

[6] Ibid., 348.

[7] Ibid., 350.

[8] Ibid., 352.

[9] Ibid., 355.

[10] Ibid., 382.

[11] Ibid.

[12] And, as mentioned above, Melville’s story slips from view once the focus is placed on the suffering produced by punishment (even deserved punishment).

[13] Supra, note 5, 382–83.

[14] Ibid., 383.

[15] Ibid., 363.

[16] John Dunne, The City of the Gods: A Study in Myth and Morality, New York: Collier–Macmillan Company (1965), 98.

[17] Ibid.

References

Dunne, John. The City of the Gods: A Study in Myth and Morality. New York: Collier–Macmillan Company (1965).

Melville, Herman. Billy Budd, Sailor, and Other Stories, New York: Penguin Books (1986), 317.

Zaibert, Leo. Rethinking Punishment. New York: Cambridge University Press (2018).