PUNISHING “DIRTY HANDS”: INSIGHTS FROM ZAIBERT’S RETHINKING PUNISHMENT
[☛ read the rest of the Symposium on Leo Zaibert, Rethinking Punishment (2018)]
Stephen de Wijze*
- Rethinking Punishment
Every so often a book is published within a particular area of philosophy that challenges the prevailing orthodoxy and opens up new vistas for exploring and deepening our understanding. Leo Zaibert’s excellent Rethinking Punishment does just this. He carefully, systematically and compellingly challenges the core assumptions that have underpinned punishment theory over the last half-century among contemporary moral philosophers. I find his arguments persuasive and very useful for work I have been pursuing on the problem of “dirty hands” (DH). Some years back, I attempted to set out moral justifications for punishing those with “dirty hands” given that the standard consequentialist and retributive accounts were not fit for purpose. However, without the benefit of Zaibert’s work, I struggled to understand why the punishment theories on offer were so problematic. However, Rethinking Punishment fills this gap in my understanding and provides a much-needed framework within which to think about punishment, the moral conflicts and dilemmas which it generates, and how to justify punishing those who did wrong in order to do right. I begin by setting out the background issues concerning the question of punishment for those with DH and then briefly raise some possible justifications for punishing agents in these situations. If they are plausible, this will endorse and operationalize Zaibert’s general thesis concerning the need for pluralistic accounts of punishment. I conclude by considering a paradox that arises when punishing DH. It seems that this problem poses a difficulty for pluralistic theories of punishment which calls for further consideration.
- Pluralist Accounts of Punishment
Zaibert’s central and path-breaking insight in Rethinking Punishment is that when seeking to justify punishment, we should no longer concentrate on the mainstream disagreements between retributivism and consequentialism, but rather “focus on the distinction between monistic and pluralistic justification” (4). This important shift in perspective highlights two issues: firstly, that “punishment is necessarily dilemmatic” (23) and, secondly, that this dilemma arises within the axiology or value of punishing. Zaibert argues that all punishment gives rise to an unavoidable clash of irreducible values: between the duty to inflict deserved suffering on the guilty, and the need to take into account the values of mercy and forgiveness which call for the diminution or elimination of suffering. In short, this comprehensive and complicated approach to understanding punishment requires the balancing of conflicting values and accepting that genuine moral conflicts leave a moral residue (or moral taint, as Zaibert prefers to call it). There is no avoiding this state of affairs whichever action-guiding path is chosen.
Moral theorists wedded to monistic justifications consider the above claims to be incoherent and confused at best. But as Zaibert carefully argues, being wedded to monism leads them to “simpleminded” (18) accounts of punishment typified by the different contemporary versions of retributivism and consequentialism. With a proper understanding of the difference between the axiological and the deontic, however, it becomes clear that a pluralist justification of punishment is needed to recognise and do justice to a different type of conflict which consists in “the fact that the value of punishment and the value of forgiveness are in tension” (21). The monistic justifications for punishment, in either their deontic retributivist or classical utilitarian guises, fail to engage with the unavoidable axiological complexity found in all cases of punishment. Zaibert rightly points to the futility of trying to ignore the reality of unavoidable moral conflict:
To discuss punishment without paying attention to the moral conflict it generates (and its attendant remainders) is not only an impoverished exercise but truly an exercise in futility: a way of unwittingly ensuring that the central debate over punishment’s justification is mired in an unproductive stalemate. If the debate over punishment’s justification is to be advanced, we need to play much closer attention to the central conflict opposing the value of deserved suffering and the value of its merciful remission. (26)
Zaibert reveals that the inspiration for his challenge of orthodox punishment theory arises from a parallel discussion that has been taking place within moral theory more generally. This is the discussion with which I have been largely involved in my examination of the problem of DH and from which my interest in punishment theory arises.
- Moral Theory, Real Moral Conflict and the Remainder Thesis
In contemporary moral theories, the impasse that exists between deontological and consequentialist approaches, combined with the strong intuition that such accounts do violence to our moral reality, has led to a questioning of long held core assumptions and their efficacy. For example, the supposition that there is always a clear and unambiguous action-guiding answer to every moral problem is rejected as unsustainable given the phenomenological evidence. Insisting, nevertheless, that this is the case arises from a blind acceptance of a deeply problematic monist account of value whose logic requires the rejection of the very possibility of genuine moral conflicts. Monists insist that to accept the possibility of real (rather than prima facie) moral conflict is to succumb to confused and incoherent thinking. Consequently, any moral theories that argue for real moral conflicts are seen to be primitive and/or mired in erroneous thinking about our ethical obligations and duties.
However, there has been considerable push back against this view. Many recent theorists have argued that genuine moral conflicts (and dilemmas) are not only possible but also a pervasive and unavoidable part of our moral reality. Moral theories that seek to dismiss them or explain them away as incoherent and/or confused fail to capture the nuances and subtleties of our complex moral lives. Bernard Williams, Thomas Nagel, Stuart Hampshire, and many others, have argued that most contemporary deontological and consequentialist moral theories based on monist assumptions are deficient, misleading, and distorting of our moral reality. By “moral reality” I mean here the complete set of experiences that constitute our moral lives. These include our deontic choices, moral emotions, the sense of our own goodness and integrity (or badness, deceit and corruption), the special normative demands of our social roles, and the pull of different moral imperatives – from personal duties to universal consequentialist and deontological imperatives.
Consequently, we need pluralistic accounts which offer an explanation of our ethical lives that go beyond merely seeking action-guiding advice. There is more, much more, to morality than how we ought to act in certain situations. We also need to know how we ought to feel and what we have become by so acting. But most importantly, these pluralistic moral theories would acknowledge that in many situations a good person is faced with having to commit unavoidable moral wrongdoing and thereby compromise her moral goodness. Such theories make conceptual space for a moral remainder or taint, which cannot be avoided and will become part of the ethical lives of good and morally conscientious persons.
- Dirty Hands: Justified Wrongdoing and the Case of Captain Vere
In chapter 8, entitled “The Jugglery of Circumstances: Dirty Hands and Impossible Stories,” Zaibert offers a careful reading and close analysis of Herman Melville’s Billy Budd. (Zaibert’s nuanced and insightful account of this text is one of the best pieces of literary analysis I have read on Melville’s story.) This classic masterpiece provides an example of how good and virtuous persons find themselves in situations where they cannot avoid becoming morally compromised. Good persons can be, and often are, ethically tainted by actions and events beyond their control. This is especially the case for those who are morally obliged to exercise their considerable power in a particular role that carries with it great moral responsibility. Such is the fate of Edward Fairfax Vere, the captain of HMS Bellipotent. Here is a decent moral man who always seeks to do the right thing but is suddenly placed in a situation where however he acts he will become morally tainted. Moral theory in such circumstances needs to answer more questions than just the justifiability of his particular action in this situation (as important as this is). How, for example, ought Vere to emotionally respond to ordering the death of Billy Budd? How ought he and others to think about his moral goodness for the decision he has taken? And what ought he and others to do to remove the moral taint Vere now carries given that ordering Budd’s death was also deeply wrong? These are all crucial questions that moral theory in general needs to address, as does any corresponding account of punishment.
Zaibert’s primary interest in the Melville story lies in its tension between punishment and forgiveness. This unavoidable clash of values highlights the kind of problem that a pluralist account of punishment seeks to understand and accommodate. It does this by paying attention to the axiological issues in addition to the reasons for a particular deontic (or action guiding) decision. Vere’s predicament is stark. No matter what he does he cannot avoid moral pollution as he will engage in a terrible injustice that compromises his own goodness and integrity. Melville’s story offers an extreme example of why monist accounts of punishment are not fit for purpose. Fortunately most of us do not face such terrible moral conflicts. But it is not the extremity of the example that Zaibert is concerned with here. What is relevant is the general point that the nature and logic of punishment requires that the punisher lose part of their innocence (no matter how harsh or lenient the punishment involved). As Zaibert comments:
No punisher, no matter how just, is ever fully morally innocent. A punisher is in the business of making people suffer, and this business, even when the suffering is deserved (or medicinally useful), simply cannot be done without – in admittedly different degrees – dirtying one’s hands (231).
I largely agree with Zaibert here but with a proviso. I do not think that every act of punishment destroys innocence, no matter how trivial. To claim this would, it seems to me, undermine the seriousness of cases where we do indeed get DH and lose our moral innocence. There needs to be a threshold where punishing does indeed result in a violation, which is serious and morally tainting. I return to this in my final remarks about a problem with a puzzle about the pluralistic account of punishment which Zaibert outlines.
The problem of DH in general is the sui generis situation where an agent’s actions are morally justified, but nevertheless also wrong. Vere faces a tragic situation, but also one that will dirty his hands. His decision to hang Budd was, all things considered, justified yet he also committed a grave injustice. Budd was innocent of the charges made against him by Claggart, and the accidental killing of his accuser, even though punishable, did not warrant the death sentence. Vere acted as a Captain needed to act in the circumstances but justice here also demanded leniency and mercy. Vere rightly was deeply disturbed for the rest of his life by his actions in this affair. As an ethical man who had dirtied his hands, he felt the moral pollution until the end. Zaibert is right to point out that monistic theories of punishment, which would dismiss or make light of Vere’s reaction, are doing violence to our ethical sensibilities, which in this respect are neither confused nor primitive. They are the hallmarks of good, virtuous, and sensitive human beings.
- Punishing the Punisher: Seeking Pluralistic Justifications for Dirty Hands
I now turn to an attempt to operationalize the core insights in Rethinking Punishment. What, in concrete terms, would a pluralistic theory of punishment offer as suitable justifications for difficult cases of unavoidable moral wrongdoing? Several years ago I attempted to outline three justifications for punishing those with DH. My motivations for seeking new and sui generis justifications were motivated by two considerations. Firstly, I agreed with a comment by Michael Walzer that a person with DH (in his example a politician who had ordered torture) ought to be punished since he had committed a determinate moral crime and acknowledged a serious moral burden. Yet Walzer remained frustratingly vague about which theory of punishment could support this view.
Secondly, on close inspection, the available standard justifications for punishing wrongdoing were simply not suitable for cases of DH. The forward-looking consequentialist approach was not applicable since its rationale is the prevention of future bad behaviour and thus cannot apply to cases of DH. We want and expect good persons to act as they did (and if necessary to do so again) in those very difficult moral circumstances in which they find themselves. Similarly, all backward looking retributivist accounts proved unhelpful as they are based on punishing wrongdoers for what they deserve for committing a moral violation. However, if an action was morally justified, all things considered, then getting “dirty hands” warrants praise for doing what one ought to do. Imposing punishment in such cases seems little different from the indefensible and deeply perturbing case of punishing the innocent.
Given these considerations, cases of genuine DH are either never justifiable, or there needs to be alternative justifications with the conceptual resources to deal with their sui generis circumstances. Among DH theorists, Neil Levy follows the first arm of this disjunct arguing, that since neither the consequentialist nor retributivist justifications on offer are credible, there can be no valid reason for punishing the dirty. To accept the former is to undermine the notion of DH itself, while the latter confuses responsibility with blameworthiness leading to the infliction of punishment when it is unjustified. Levy’s criticisms of the extant punishment theories are correct but he makes the error of then concluding that punishing dirty hands could never be justified. His conclusion is based on erroneously accepting that the monist justifications he rejects are definitive of all possible theories of punishment. Unable to see a way past these simplistic accounts, Levy opts for excluding punishment even though he accepts that dirty hands scenarios involve serious categorical wrongs, which leave significant moral pollution in their wake. This is a high price to pay (Levy accepts it as the lesser evil), and it raises many more problems concerning DH than it solves. How, for example, do we properly acknowledge those who have been severely wronged albeit justifiably? How ought we to cleanse ourselves of the moral dirt from, and atone for, serious albeit necessary wrongdoing? How do we take seriously Zaibert’s insight that all punishment, not just cases of DH, involves a loss of innocence that validates the Remainder Thesis?
The second arm of the disjunct is to seek alternative justifications for punishing the dirty that do not rely on the extant theories. In my 2013 paper I offered three alternative justifications: from “catharsis,” “recognition of evil suffered” and “causal responsibility.” While this is not the place to fully elucidate them, it is important to note that they all sought to recognize the tragic circumstances of DH and acknowledge the unavoidable clash of values and their effect on both the agent and her victims. They emphasize the importance of recognizing axiological issues in addition to the deontic ones. The justification from catharsis requires the punishment of DH in order to enable dirty agents to publicly acknowledge their moral violations, do penance, and cleanse themselves of the moral pollution. Here punishment acts as a form of therapy and atonement for dirty agents enabling a process whereby they can return to the zone of the morally uncontaminated. The justification from “recognition of evil suffered” seeks to emphasize insights taken from Raimond Gaita’s work, where punishment acknowledges the uniqueness of a DH situation and works to “capture the evil in it.” Immoral actions violate the “special dignity” or “special authority” of the ethical and fail to treat persons as ends in themselves. The infliction of punishment is the best way to demonstrate that we understand the “evil in the situation,” and that we recognize the humanity and importance of other human beings. Finally, my justification from causal responsibility sought to capture the intuition that we ought to be held responsible for some actions which we did not intend but were nevertheless an important part of the causal chain of a terrible event. Contra Levy’s arguments, responsibility and blameworthiness do not pull apart in DH situations. Doing something horrendous and wrong, even if unintended or when strenuously but unsuccessfully resisted, still leaves a moral remainder and the need for punishment to acknowledge the moral pollution that results.
After reading Zaibert’s excellent book, I better understand why I found the task of developing appropriate justifications for dirty hands scenarios so difficult and, additionally, why there were no existing theories of punishment that were suitable for the problem of DH. Lacking the clarity and insight Zaibert’s work provides, I was trying to develop principles without understanding the deeper problems with the extant monistic theories of punishment. Rethinking Punishment provides the finer details and deeper insights which that task requires. A set of special justifications for punishing the dirty is part of a more general project to develop a pluralistic account of punishment. My justifications are one small step in operationalizing this broader and necessary theoretical goal. I am also reassured that the messiness of my justifications is not necessarily a negative mark against them. In a world where incompossible values underlie our moral reality, and place conflicting and often-tragic demands upon us, any proper and serious attempt to take the axiological difficulties of punishment theory seriously must reflect this untidiness.
- Punishing Dirty Hands: Walzer’s Paradox and a Pluralist Response?
I want to end by raising a concern with a pluralist account of punishment. It is not a worry that such an account would be messy, or that it relies on accepting the existence of unavoidable moral conflicts. This, as Zaibert points out is not a criticism that is compelling:
My axiological pluralism simply registers more faithfully than its alternatives the underlying (brute) fact that the world is messy – a fact that ordinary, everyday experience reveals to us. Thus, I think the burden of proof falls on those who wish to deny what ordinary, everyday experience reveals to us (171).
My concern lies with a particular logical conundrum and boundary problem that arises even when we have a plausible and compelling justification for punishing the dirty. Again, this is a concern that Walzer raises and leaves unanswered in the section v of his “Political Action: The Problem of Dirty Hands.” This discussion considers three different traditions of thinking about DH, specifically about who might be the appropriate authority for deciding on the limits of justified wrongdoing and the punishment it necessarily attracts. Walzer’s reflections on what he calls the neoclassical, Protestant and Catholic views are beyond the scope of this paper but it is important to note that he is inclined to support the Catholic tradition over the others. The reason is that it places the burden of deciding the limits of dirty acts, and appropriate level of punishment for so acting, to the state or some other appropriate recognized public authority. It makes the infliction of public punishment one of the consequences of getting DH. Yet for the state or any other group to inflict this punishment results in a paradox. When a person gets DH, when they lie, manipulate, and kill, we (the state in our name) need to punish them for so acting. But as Walzer points out:
We won’t be able to do that, however, without getting our own hands dirty, and then we must find some way of paying the price ourselves. (Walzer 1973: 180.)
If this is correct then it is unavoidable that we dirty our hands when we punish those who have dirtied their hands. And this leads to an infinite regress where those punishing must be punished and so on ad infinitum. In a democracy, this leaves all of us perpetually with dirt on our hands and in need of punishment. Yet this seems implausible. DH scenarios involving serious crimes are rare (or at least ought to be) and we want the blame and guilt to be more or less contained with those who so acted. In a democracy, our politicians willingly and knowingly take on the moral burden of needing to dirty their hands on our behalf. If the guilt and moral loss spreads out too widely or without end, it degrades the concept of DH, which now becomes so commonplace that it loses its salience and critical sharpness. It is not clear, how we can address this problem. This brings me back to Zaibert’s claim that every act of punishment destroys innocence. If this is so, do we not hollow out the notion of innocence so that the term becomes unhelpful? And if this is right, does this point to a serious internal problem with developing a pluralistic account of punishment?
Zaibert’s outstanding book provides us with the groundwork for a pluralistic theory of punishment. For critics it may seem that his is a counter-enlightenment project that rejects rational and logical discourse for fuzzy and unreliable feelings or intuitions. But this is emphatically not the case. Zaibert’s work sits properly in the tradition of enlightenment values where argumentation, logic and evidence lie behind all compelling arguments. What Zaibert has done (following the recent movement in moral theory in general) is to question and reject the assumptions underlying the prevailing orthodoxy by offering clear, elegant and persuasive reasons why they should be abandoned. He has shaken up conventional punishment theory and called it out for its simplistic presuppositions given our immensely complex moral reality. Our moral lives are underpinned by many different and often incompossible values. This bald fact cannot be dismissed or ignored without developing theories of punishment that are substandard and misleading and which do violence to our moral intuitions and feelings. While we need common sense, rigour, logic and sound arguments, we also need to accept that not every moral problem has a neat tidy solution. Accepting this is not to succumb to primitivism or a lack of rigour but to properly deal with human moral experiences without demanding they comply with theories based on problematic assumptions. Zaibert’s Rethinking Punishment has provided a clear and nuanced way forward for theories of punishment, and in doing so has made a significant, important and lasting contribution to moral theory in general. We are in his debt.
* MANCEPT, Politics, University of Manchester.
 This paradox is briefly mentioned in Michael Walzer’s 1973 seminal article. See Walzer, M. 1973. “Political Action: The Problem of Dirty Hands.” Philosophy & Public Affairs 2/2: 160-80.
 For Zaibert “axiology” refers to “the area of moral philosophy that is concerned with theoretical questions about value and goodness of all varieties” (13). The “deontic” denotes “considerations that lead us to act in certain ways” (13). Punishment theorists have long misunderstood this distinction. They tend to think of retributivism as a deontic theory and consequentialism as axiological. This is one of the core traditional assumptions that Zaibert rejects as simplemindedly monistic.
 Moral philosophers who take this moral phenomenology seriously seek to show that there are also strong theoretical reasons to hold these views about values and obligations. Zaibert reminds us of a conversation between Michael Stocker and Bernard Williams (both pluralists about value who argue for the existence of real moral conflict) where they noted that their work on moral theory was largely “reminding moral philosophers of truths about human life which are very well known to virtually all adult human beings except moral philosophers” (224).
 Moral dilemmas are a species of moral conflict. Dilemmas are conflicts where there is no clear action-guiding reason to act in a particular way. Mere conflicts do offer a clear action guiding option. What is common to both is the moral remainder that results from acting (or from refraining to act).
 The inevitability of a moral remainder is sometimes referred to as the “Remainder Thesis.” Monist moral theories, in contrast, support an “Eliminative Thesis” which claims that once an action is justified, there can be no moral residue or remainder from so acting.
 One can and often does face tragic situations where choices need to be made between conflicting values but these choices do not involve active participation in moral wrongdoing. Choosing, for example, to destroy precious works of art to save a person’s life, would be tragic but not a case of dirty hands. Dirty hands cases typically involve choosing in situations where the evil or immoral circumstances created by others forces a difficult and undesirable choice between lesser evils.
 I am assuming here that Vere’s duties as Captain and his recent concerns about mutiny in the British navy make it an overriding duty to condemn Budd.
 de Wijze, Stephen. 2013. “Punishing Dirty Hands: Three Justifications.” Ethical Theory and Moral Practice, 16/4: 879-97.
 “We would punish him, that is, for the same reasons we punish anyone else; it is not my purpose here to defend any particular view of punishment.” Walzer 1973: 179.
 Levy, N. 2007. “Punishing the Dirty” in I. Primoratz (ed.) 2007, Politics and Morality. New York: Palgrave Macmillan: 38-53.
 Gaita, R. 1991. Good and Evil: An Absolute Conception. Basingstoke, Hampshire: Macmillan: 74.
 Walzer 1973: 175-80.
 The literary example Walzer uses here is Camus’ The Just Assassins. Walzer summaries the plot as follows: “The heroes are innocent criminals, just assassins, because, having killed, they are prepared to die – and will die. Only their execution, by the same despotic authorities they are attacking, will complete the action in which they are engaged: dying, they need make no excuses. That is the end of their guilt and pain.” (Walzer 1973: 178.)
 I am grateful to Jeremy Barris, Daniel de Wijze and Eve Garrard for comments on an earlier draft of this paper.