In the field of criminal law, there are two main philosophical schools on how society is allowed to punish offenders. The first is the retributive school — basically arguing that we can punish people solely based on how much they “deserve” to be punished, no more and no less. Punishment is seen as a matter of just deserts, apportioned to the moral culpability of the offender. We can’t raise or lower punishments because might make society better off (a more severe punishment might serve as a superior deterrent, a less severe one might allow a brilliant scientist to continue his work unhindered by a jail term).
The second school is utilitarian (or consequentialist) — it says we can punish because and only when society benefits from it. Deterrence (preventing further crimes) is a utilitarian rationale, as is incapcitation (preventing the criminal from committing more crimes) and rehabilitation (making the criminal a productive, socially beneficial member of society). We can punish up to point where all parties continue to reap a net benefit, but no further. This might mean we can’t punish at all, in certain situations, where the social consequences of punishment would outweigh its gains. Alternatively, it might mean we’d be justified punishing completely out of accordance with moral fault if there were socially compelling reasons to do so. Hanging an accused thief by his entrails may be wildly out of sync with just deserts, but it would probably make other accused thieves think twice before picking pockets.
Retributivists and utilitarians are not friends. Utilitarians allege that punishment without social benefit is barbaric — solely seeking to quench the victim’s or society’s thirst for blood. Moreover, punishment that isn’t tailored to increase social benefit imposes huge costs on society by, for example, missing critical opportunities to change behaviors. Insofar as we are missing opportunities to, say, deter rape, a utilitarian would say that we are in a lot of ways responsible for the rapes we could have prevented but didn’t. Retributivists counter that utilitarian punishment has no checks to insure it products the basic human dignity of the condemned and risks devolving into state-sponsored torture if the state claims a net benefit from it. On the other hand, it also provides an out for politically or economically-powerful individuals to escape liability for even the most horrific of crimes, if they claim that society would suffer more by their removal than it would gain through punishment. Because the idea of “social gain” is always indeterminate, punishment becomes solely the province of the poor and marginalized, and even can become a collateral weapon against social dissidents who are labeled “undesirable”. This a just a sampling — the literature in this field is rich and dense, and won’t be resolved in the space of a blog post.
Outside the academy, though, I suspect most of us blend together elements of both schools. We want our mechanisms of punishment to achieve social goals — make us safer, rehabilitate wrongdoers, recompense victims — while still staying at least tied to some rational conception of culpability.
One other function of punishment that I think sometimes gets elided in these categories is the function punishment serves of communicating social outrage. When we punish someone by, for example, sending them to prison, we are implicitly communicating a message by society that the behavior they were convicted of is deeply offensive and wrong to our communal sensibilities. The longer or harsher the punishment, the more outrage we are communicating. In its simplest form, I think this can be folded into a retributive model. The claim that X conduct “deserves” Y punishment is another way of communicating the degree the wrongdoer has deviated from communal norms, and our ensuing anger. You could argue that this expressive function of punishment also serves utilitarian ends in the form of social catharsis, or checking the potential for vigilante justice.
I don’t think this is per se invalid. One of the reasons I support hate crimes legislation is because I think it is important for society to send a message that such actions are not “taken in our name”, are not silently endorsed by the majority, but represent an egregious violation of community standards whose voice is communicated most clearly through law. But sometimes, the expressive element of punishment bursts beyond the constraints of either retributive or utilitarian considerations and takes on a life of its own.
In Arizona v. Berger, the Arizona state supreme court upheld a mandatory minimum 200-year sentence with no possibility of parole against a 52-year old man with no prior criminal record after being convicted of possession of 20 images of child pornography (10 years per image, running consecutively). The sentence was greater than the mandatory minimum for murder, rape, aggrevated assault or (ironically) sexual assault of a minor under the age of twelve.
Commenting on the case, law professor Hanno Kaiser wrote:
The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault’s Discipline and Punish….Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality.
“The decision in Berger cannot be rationalized with arguments from traditional consequentialist [utilitarian] or retributive theories of punishment, as it violates every requirement of proportionality.”
The legal machinations that gave us Berger constituted a situation where the expressive functions of punishment took on a life of their own, stretching beyond retribution or utility and instead violently ripping the offender out of society — essentially rendering him a non-person. The motivating factor to writing the statute this way was neither to exact just retribution (there is no way possession of child pornography is worse than actually sexually assaulting a child), nor was it tied to utilitarian considerations designed to make society as a whole better off.
Rather, these sort of ratcheting effects in criminal law occur as legislators race to present themselves as more and more outraged by the behavior in question. The most efficient way to signal that outrage is to direct and support greater state violence against the wrongdoer. By contrast, once the targeted class is rendered extra-social — as beyond the realm of the community or even moral personhood — there is virtually no constituency or incentive to try and pull the rhetoric back down. Research on group dynamics indicates that the membership of like-minded organization will constantly push each other to adopt more and more extreme positions, particularly vis-a-vis the other. An arms race of moral self-righteousness ensues, wherein the targeted class is pushed further and further away from the type of communal bonds and empathies that might otherwise restrain us. Dehumanization and violence are the likely and predictable result of this treatment.
One way to think about this sort of behavior is to view it as self- rather than other-regarding. Retribution is premised off what the wrongdoer deserves. Utilitarianism looks at what makes all parties (offender, victim, and society) better off. The expressive function Prof. Kaiser describes at work in Berger, by contrast, is primarily directed at the critics themselves. It is designed to make them feel more secure in their moral personhood by drawing a clear line between themselves (“good”) and the violators (“bad”). It also signals and affirms their membership in the group by participating or leading in the criticism — nobody wants to be the guy who thinks child pornography is less bad than everyone else, and there are real risks of exclusion if one takes that role upon themselves. Consequently, while wrapped in the rhetoric of punishment, the sort of moral outrage that breaks loose from normal penological discourse is fundamentally self-indulgent — it can claim neither to be doing justice as to the offender, nor to be particularly concerned with improving society, deterring future behavior, or protecting victims.
Prof. Kaiser limits his analysis to the legal system, which he says needs to be separated from “the moral system”. I disagree, both because I think punishment is a form of moral expression, and because I think that in modern society, punishment is not the sole province of the state. There are non-legal sanctions one can impose upon someone or something accused of morally wrongful behavior: e.g., boycotting them, shaming them, or even simply morally criticizing them. These are properly construed as forms of punishment.
When I say that “criticism” is a form of punishment, I don’t mean to say that it is something that should be avoided or something that requires a full-blown hearing to be justified. I’m merely expressing the (hopefully uncontroversial) idea that we criticize due to our belief that the target has done something wrongful. We often punish children by giving them a “stern talking to”. Like all punishment, the language of criticism is wounding and hurtful (which is part of what makes it effective), consequently, it should not be deployed unless it is being used for a legitimate penological end. “Stop being a jerk”, said to someone who just laughed at a child who broke their leg, is legitimate in a way that saying the same thing to a different, innocent person merely because you don’t like them and you want to make them feel bad, or because you want to ostracize them from the clique of popular kids, is not. Criticism is thus part of the panoply of non-legal punishments we direct against wrongdoers. In many respects, it is the punishment of first resort (as it should be).
As a punishment, however, criticism ought to be restrained by the same considerations as all of its other cousins, that is to say, it must be reasonably related to either a retributivist or utilitarian rationale. If we are being retributivists, for example, our criticism needs to be tied to some rational conception of moral fault. The way we determine what is proper retribution is by comparison — we look to how we criticize other moral failings, and try and figure out where the failing at bar falls with relation to its peers. The reason we know that 200 years is too much for possession of child pornography isn’t because there is some transcendental ideal of “justness” which tells us how many years in prison is correct. The simplest way of knowing that the punishment is too harsh is that it exceeds that of crimes which we all agree are more serious (such as actually sexually assaulting a minor). Criticism can work the same way — we look to see how we are criticizing other wrongdoers, compare the degree of moral fault between the past cases and the current, and adjust our current criticism so that it fits with the broader schema we’ve established. If we’re criticizing a less serious act more harshly or more frequently than a more serious act, or vice versa, then we are not being retributive.
Of course, we don’t have to be retributivist. Criticism can and often is utilitarian in nature — seeking to reform the perpetrator or head off wrong doing towards victims rather than express a message of “you deserve criticism”. This might justify directing more criticism towards an objectively less severe act, if, for example, we think that our criticism in this case is more likely to have a positive effect in the form of deterrence, behavioral modification, or justice. There are all sorts of reasons we might think that the effectiveness of criticism won’t mesh perfectly with a list of the most grave wrongdoers. We might expect that less grave wrongdoers are more likely to listen to the critique and take it to heart, or we might have stronger connections with some persons or groups compared to others, giving our criticisms more weight. I’m sure there are others. All of these would justify directing more frequent or perhaps harsher criticism towards a less culpable wrongdoer, from a utilitarian perspective.
But if we’re going to be utilitarian, we have to be utilitarian. Utilitarian considerations don’t always counsel extra criticism or punishment. Indeed, they counsel the precise amount of criticism and punishment most likely to yield positive results. Sometimes, even retributively just criticism may not meet this burden, for a variety of reasons. Where criticism, punishment, or threat of punishment is likely to yield bad consequences, it must be dropped, because it isn’t about “justice” in the abstract, it’s about consequences on the ground. Often, this requires painful concessions that cut to the heart of our conception of just deserts. One would be hard pressed to find a man more deserving of being hauled in front of a war crimes tribunal that LRA head Joseph Kony. Yet it may well be that the only way to secure peace in Uganda, wracked for decades by civil war, is to drop ICC prosecution against him. Should they do so? A utilitarian would be hard pressed to say no. A retributivist would be hard pressed to say yes.
Just like legal punishments, non-legal punishments can very easily detatch themselves from the bounds of these two limiting factors and take on the solely expressive purpose of signaling moral hatred. When this occurs, the same rules (or lack thereof) apply — the ratcheting incentive and arms-race of evermore strident condemnation, the primary self-regarding (and thus self-indulgent) nature of the discourse, the removal of the alleged offender from the bounds of society, the presentment of the offender (and his or her defenders) is something less than human, and finally, violence. Last month in the UK, the occurance of anti-Semitic acts exploded seven-fold compared to a year prior and more than doubled the previous month on record. The normal wardens against racism and hate proved themselves unable or unwilling to interpose themselves against the tide. Both the perpetrators, who cast even the beatings as being a sort of criticism against Israel, and the victims seem to agree on the cause. In Venezuela, a fifth of the country’s Jewish population has fled the country, a synagogue was recently sacked, and the country’s remaining Jews are quite clear on who they lay the blame upon, because one simply cannot say the things Chavez says and then be surprised or defensive when folks start physically assaulting Jews. In both nations, the primary instigator of this violence was “criticism” of Israel and Zionism that had become so poisonous, so far removed considerations of justice or consequences, that it mutated from a call for dialogue between members of the human community, to a delineation seeking to establish who is human and who is not.
This isn’t about criticizing “politely”. Nor is it an argument against criticism, any more than objecting to the Berger sentence is an objection to legal punishment or the morally blameworthiness of possessors of child pornography. This is about the very predictable results of dehumanization enacted through “punishment” as an expression of moral hatred, as opposed to just deserts or utilitarian considerations. Render someone extra-social, and someone will take you up on it. The responsibilities to stay tethered to retributive or utilitarian goals if you are to punish is no small matter. People’s rights, people’s safety, and people’s lives depend on it. In a real and significant way, the entire moral system depends upon it.
Excellent post.
The fundamental flaw in your analysis is that framing criticism as punishment is only accurate if the criticiser has power over the person, state, or entity they are criticising.
I think what complicates that is that someone who doesn’t have power over Israel or Israeli policy may have power over individual Jews, and there are people who either do not understand or do not want to make the distinction. (Chavez, just to use an example of someone who is very clearly in a position of authority.)
Do you think the increase in antisemitic incidents and attacks is unrelated to the type of rhetoric used to describe Israel? Do they flow merely from underlying antisemitism coinciding with current events? Would they occur no matter what rhetoric was used to criticize Israel?
Actually now I think about it there is another – not flaw – but huge area of assumption that isn’t articulated. In this you suggest that we should treat entites (states and I would assume corporations) in the same way that we treat people. Now this is something I strongly disagree with, for a lot of reasons, starting with the fact that I don’t believe either statesor corporations should exist. Not everyone is going to agree with me, but I think it’s enough of a leap that it’s something that you have to positively make arguments for, rather than just state “we wouldn’t treat a person like this so we shouldn’t treat state like that.”
Chingona – I think for me to answer your question would be to thread derail, because I disagree so fundamentally with everything David has argued up to the last two paragraphs, that I can’t answer the questions raised in the last two paragraphs in the context of the rest of the post. All I’ll say is that I think Jews are often held more responsible for the actions of the Israeli state than citizens of the US are for the actions of the American state (or any comparable example). Clearly the reason for this is anti-semitism (in many different ways). That is where I would locate my response to the issues you and David raise.
I don’t disagree that we should treat states and corporations differently than people, at least some of the time. I’m confused, though, what about state-ness or corporate-ness would indicate a different methodology of punishment outside of the retributive or utilitarian models, and what those penological models would look like (since I’m genuinely unaware of a major alternative theory of punishment aside from the R and U schools).
I don’t believe states or corporations should exist and I don’t believe a punishment/control model of society. I’m not the person to suggest a theoretical model how those two concepts should mix.
You’re the one who has posited an argument that I see as full of assumptions. It may be useful for people who share the same assumptions as you, but it is almost meaningless to me.
You are arguing that criticism is always a form of punishment (an argument that I don’t think you’ve supported not just because of the power issue I raised before, but because just to say that criticism is sometimes used as punishment, doesn’t mean it’s use has to conform to ideological ideas of the function of punishment – the venn diagrams could interact rather than be two identical sets).
You are arguing that the way individuals interact with states should be conceptualised in terms of punishment. I think that’s a terrible analogy that doesn’t reflect the power relationships between people and states.
David, a point of information:
Where does this statistic come from?
RJN: Here.
Maia: I think your point (or at least, what I take to be your point) that punishment requires power is a solid one, and one I didn’t really consider adequately (of course, not all the criticism we’re talking about here is individual-on-state — the Venezuela example, is state-on-state criticism). If I tell Texaco that, for its crimes against the people of Ecuador, it must pay damages in the form of $1 billion, that’s not really punishment since they don’t have to listen to me (I guess we might say it’s a failed effort at punishment). If I became some sort of magistrate though with authority to enforce, then it becomes punishment.
So while I wouldn’t say that punishment-requires-power necessarily means that punishment of the state is impossible, I do think it might be said to only occur when the punishment has some effect — when it isn’t just shouting into the wind. When criticism has enough power behind it to actually materially change the circumstances under which the criticized-party has to behave, then I think we might call that criticism. I also think that the position that “states/corporations shouldn’t exist and should be abolished” isn’t necessarily inconsistent with “punishing currently existing states/corporations should accord with general principles of punishment.”
I wonder how your analysis plays out where the type of criticism I’m talking about does become individual/individual, which I think arguably occurs in three cases:
1) Alleging individual persons should be, e.g., charged with war crimes.
2) Criticism of individual persons or groups of persons for their support of a state or practice.
3) The “collateral damage” wherein even state-directed criticism is a proximate-cause of violence against individuals seen as related to it. This last one, in a lot of ways, is the most disturbing situation to me.
Fair enough. I can appreciate that.
Except that a more appropriate analogy might be Jews are held more responsible for the actions of the Israeli state than white people of all nationalities are for the actions of the American state. I’m not sure if you meant to build that discrepancy into your analogy or if it was accidental.
Chignoa – The discrepancy was deliberate and part of what is so anti-semitic about the way Jewish people are held responsible for the actions of the Israeli government.
David – I think part of the problem I have with your analysis is that you’re not very explicit about your analysis of the relationship between people and states. People’s analysis varies widely and you can’t expect to talk about how things ‘work’ without being explicit about this part of your analysis.
For instance, I think that punishment is about control, and in order to punish someone you have to have some sort of control over them (think states over people, schools over student, parents over kids). I think if you remove the idea of control the concept of punishment becomes meaningless. I don’t believe it’s possible for individuals to have that sort of control over states, even if they get some power.
Your idea of people punishing states through their collective resistance (which is the only way non-powerful people could have any influence on states) is centred on the state rather than the people resisting. I would never use an analysis that centred on states rather than people, because of my from below politics.
I’m not sure about where you’re going with your individual on individual examples (remember I still think punishment has to invovle some sorts of control which is missing from most of these examples):
1. I think the power issue is raised again. Very few people have the ability to try someone as a war criminal so a banner saying “XXXXX is a war criminal” is not punishment.
2. I’m not sure what you’re talking about here. Are you talking about friends, people in blogland, random strangers, people in positions of power? Because the implications are very different depending on who you’re talking about.
3 – As I indicated to Chingona- I think you’re missing a few steps. There was plenty of criticism of the United States government in the lead up the war on Iraq, and this didn’t lead a 7 fold incfrease in violence against Americans in Britain. The reason opposition to the actions of the Israeli state leads to attacks on Jewish people isn’t criticism of Israel but anti-semitic beliefs which hold Jewish people for the actions of the Israeli state (which is my issue with what Chavez said, to go back a few steps).
Okay, I think some of the differences are coming through here. I agree that punishment requires power for it to carry, but I think I define power differently than you do — I’d define it as where one has the capacity to “materially change the circumstances under which the criticized-party has to behave”. For example, my roommate and I aren’t in a relationship akin to teacher/student or state/citizen, but both of us can inflict a variety of punishments against each other for infractions (shunning, passive-aggressive retaliation, hurtful words, etc.). The point isn’t that one of us “controls” the other, it’s more about ability to have an effect (my decision to shun Bill Gates, by contrast, doesn’t materially effect his life at all). If a group of persons can materially effect the circumstances surrounding state behavior, that is sufficient power in my view for us to reasonably call what they’re doing punishment. In general, though, since I suspect that in most cases of punishment-sans-power (failed punishment), the speaker is expressing what she would like to do if she was empowered to do so (successful punishment), it is a good norm for said speech to cohere to the norms of successful punishment (if for no other reason than that you never know when your punishment will pull through and become salient).
I also don’t know if it was clear that I don’t consider “punishment” to be morally wrongful. Sometimes it is quite the right thing to do. So when collective resistance to states materially changes state behavior, that’s punishment, but it may be entirely moral, proper, and justifiable. I think punishment, when properly located inside retributive or utilitarian frames, is a good thing.
I also don’t think it is state-centered in this case, anymore than I think that situations where the state is the punisher and the individuals the punished is individual-centric — I think punishment theory focuses roughly equally on the condemner and the condemned through the mediation of their relationship and obligations to each other.
My thought process on #2 was centered around a situation such as groups of college students. Insofar as criticism of X also includes in it criticism of those who support X, the moral hatred risks are still present. And it doesn’t fit under situation #3 because the moral hatred isn’t stemming from “Jews are responsible for Israel’s actions” but “you identify with an entity I am expressing moral hatred against and wish to draw out of society, hence, you are also worthy of such hatred and should be drawn out of society.”
I understand the premise of this post is that people criticize with a high degree of knowledge and intention about the consequences of their criticism. So please forgive me for going a bit off-topic here, but I’d I urge caution in that premise.
After all, a lot of bad shit has been done in Jesus’s name; what conclusions can we draw about Jesus’s intentions? For, as the prophet H.L. Mencken said, “Any man who afflicts the human race with ideas must be prepared to see them misunderstood.” That is, it is foreseeable that bad things will be done in the name of famous people and popular ideas. Does this imply some kind of responsibility on behalf of the famous and the pithy? Afer all, if they were really concerned with avoiding harm, shouldn’t they stop doing things that draw attention to themselves?
Then again, was it not the sage Jack Handy who asked, “If trees could scream, would we be so cavalier about cutting them down? We might, if they screamed all the time, for no good reason.” In other words, beware of implied causation. Sure, lots of shit happens in Jesus’s name. But it’s far from obvious to me that, in the absence of Jesus’ name, people wouldn’t be able to find some different rationale for doing shit. The rationale that people offer for their own actions may in fact have very little explanatory power.
Thus, imagine you find a study indicating that violence in Venezuela correlates highly with the unemployment rate, but that the targets of violence vary over time. The Japanese were targeted during the 1992 recession; the Germans during the prior recession; indigenous populations before that. Could you really say that Chavez’s word were the proximate cause of violence against Jews there, rather that the recession + some chance variable?
Admittedly, I’m completely ignorant of the situation in Venezuela (and elsewhere), so if you have cause to believe that Jews would be doing just fine in the absences of Chavez, I can’t gainsay you. I just caution against a simple argument of “Chavez criticized Israel” + “Bad things happened to Jews” = “Chavez caused bad things to happen to Jews.” Venezuelan Jews may be up a creek with or without Chavez.
David – My purpose in talking to you about this has been to try and point out that your assumptions are not universal. That you are still suggesting that it would be a good norm for people to follow conclusions based on these assumptions at all times, comes across to me as arrogant in the extreme.
I felt like I didn’t spell out enough exactly what your ideas were shutting out in my last comment, so thought I shoudl do that now. The implications of what you are arguing is that you believe that every interaction between a person and someone or something they think have done wrong, should be conform with a utilitarian or or retributitive model of punishment.
This leaves out so many other possibilites of the ways people communicate with each other. For example: emotional responses, solidarity, self-determination, survivor centred respons, and so on. The story-telling perspectives that you have previously promoted could not fit into this model.
I don’t think that all interactions with putative wrongdoers need to fall under this “punishment” metric. I mean that all interactions that do, in fact, fall under the metric of “punishment”, as I define it, should meet utilitarian or retributive standards. We can decide for a variety of reasons not to punish at all, and instead engage with wrongdoers in a different way, in which case the two models don’t apply (or we can mix our interactions together — both engage in punishing behavior through criticism, and, say, reintegrative behavior through expressions of welcoming and affirmation). But in any event, I think that it’s only when we do choose to engage in a punishment-like interaction that the rules kick in (and apply to that punishment-like behavior).
Basically, I’m arguing that within a nomos of punishment, these norms are good norms. I’m not saying that the nomos of punishment is the only way we have of approaching wrongdoers, or that is the one you necessarily should adopt. There are other alternatives out there. If what your doing isn’t properly categorized as punishment, then these norms make no sense.
But I am defending the idea that moral criticism is a form of attempted punishment that succeeds when it is able to materially affect the target of the critique, and I was saying it was a good norm to adopt even to moral criticism without power (failed punishment) because (a) the implied goal is for that criticism to have an effect, even it will likely fail and (b) it’s hard for us to predict when our actions will have a material impact, so it’s a reasonable precaution to behave in ways so that if they do have an effect, it won’t be one that is morally problematic. This argument I think does rest on a stated assertion/argument — that moral criticism is a form of punishment, rather than part of a different methodology of addressing offenders.
So to lay out my assumptions and arguments specifically: (a) The punishment model is one way to approach wrongdoers; (b) moral criticism is a form of punishment (or attempted punishment); (c) when engaging in punishment, you should adhere to retributive or utilitarian norms. I am not arguing for (d) the punishment model is the only possible or proper way to approach wrongdoers. I recognize that there are alternatives, and in those alternatives, the argument is, as you say, resting on inapplicable assumptions.
Maia: The fundamental flaw in your analysis is that framing criticism as punishment is only accurate if the criticiser has power over the person, state, or entity they are criticising.
I don’t think that’s a flaw in the analysis– I think people are pretty vulnerable to criticism, even if it’s from people who don’t have power over them.
There are people who aren’t emotionally affected by criticism (or who say they aren’t– I think some of them are kidding themselves), but I don’t think it’s unusual to remember an insult for years, and the line between insult and criticism can be pretty vague.
Brett Leveridge was standing on the subway. A guy comes walking down the platform, stopping in front of each passenger and delivering a quiet verdict: “You’re in. You’re out. You, you can stay. You — gotta go.” Most people ignored the guy. But Brett found himself, against his will, hoping the guy would give him the thumbs up, and when the guy does, it’s thrilling in a very small way: a tiny kindness from a stranger.
http://www.thisamericanlife.org/Radio_Episode.aspx?sched=680
(Sorry, I can’t get that text-linking thing to work today.)
But Nancy even if we’re only talking about people and not states (because however much you think states can be personified, and I go for ‘not much’ we can acknowledge they don’t have feelings) that centres everything entirely on the person being criticised. There are lots of reasons that you might want to speak negatively about someone that are more about you than about them.
David – now you’ve changed it to moral criticism and I don’t know what you mean by that, but I still think you are arguing in circles. You’re saying that people can choose to engage with punishment (and I really think that if you go back to those punishment theories, you will see that at least some of them have more of a discussion of control that you’ve acknowledged) or not, but if they do they have to fit your punishment models.
Are you suggesting that if you’re not choosing to engage within a punishment model you can’t speak negatively about what you see as wrong (in a moral way, now that you appear to be talking about moral criticism)?
That’s the implication of arguing that criticism is always punishment, and that’s what I think is centred on the person who has done wrong doing, and completely unsustainable and silencing.
By moral criticism I mean saying something is morally wrong (as opposed to “your baseball swing has bad form” — a technical criticism. A criticism of Israel that was, say, their bus routes are inefficient would be technical, not moral — it isn’t usually meant to convey a moral shortcoming). Technical criticism clearly wouldn’t fit inside this frame either.
Since I think moral criticism (which, since its subject is the wrongdoer, is going to be centered on her or him at least enough so that it puts the criticizer/punisher in a moral relationship with the wrongdoer that carries with it obligations) is a form of punishment, yes, I think that it carries with it an obligation to stay within the moral frameworks of punishment. I understand your preference towards victim/survivor-centered frames, but I think at the point where they don’t recognize moral obligations toward the wrongdoer (including such things as proportionality or utilitarian constraints), they venture perilously close to writing the offender out of society, which leads to massive dehumanizing effects. It’s important to keep victims in mind, but I don’t think that can be used to dodge out of obligations to wrongdoers. The act of (effective) moral criticism puts one in a moral relationship with the criticizee, and the obligations that flow from that can’t be shunted off.
There is a strong strain of “victims rights” advocacy and literature in criminal law, mostly though not exclusively coming from the right. The victim rights approach explicitly and implicitly tries to pull punishment away from focusing on the wrongdoer (“coddling criminals”) and towards focusing on the victims. Some of its observations I think are solid, but much of its practical effect has been, in my view, leading to extraordinarily dangerous and dehumanizing treatment of offenders (most frequently but not exclusively in sex offense cases); and some of it is simply based off amping the rhetoric and promoting a view that the wrongdoers are extra-social and are thus worthy targets of moral hatred. My observation is that moral hatred gets legitimized when the wrongdoer is not considered to be tied into our community through a web of moral obligations (such as retributive or utilitarian obligations). I think this is a scary move that is being replicated across several other social spheres, and one I’d like to check.
I think it is completely inappropriate to bring over theories of the criminal law, where we are talking huge amounts of power and control, to discourses among ordinary people. Doing so obscures the power and control of the state. I don’t know whether you’re the person doing that, or the people who wrote the theories you’re talking about who are doing that – but either way it’s disingenuos if not a deliberate attempt to obscure the power and control of the state.
To apply then apply those discussions about the way people should discuss states, is even more grotesque. Entities, whether states corporations, or Greenpeace, are not people, they don’t have emotions. No amount of personifying them will get around this fact. THerefore theories developed to deal with people do not apply when dealing with entities. If you want to apply them you have to justify them from scratch, not through metaphor.
And I maintain that saying: “If you are going to say something is wrong you must fit within my parameters of acceptable discourse” and “people have a right to tell their own stories and define their own experiences” are two incompatible viewpoints.
I sorry you think it’s “inappropriate”. I think it is quite appropriate. I think the lessons of criminal theory relating to how we treat offenders offer important insights worth noting regardless of whether the offender is a person or organization, and regardless of whether our sanction is legal or nonlegal. I don’t think either that the the fact that the state has lots of power (particularly over persons in its jurisdiction) exhausts our entire discourse of power, makes it incoherent to talk about power relations amongst individuals, or even amongst individuals (or collections of individuals) against groups or states.
My experience has been that when we drop the observations linking moral critique to retributive or utilitarian obligations — regardless of whether our criticisms are state –> person, person –> person, or person –> state — really bad things have happened and continue to happen, and will keep on happening unless we check against the trend towards moral hatred as a legitimate outcropping of criticism.
I maintain that if you’re going to enter into a morally salient relationship with another actor (which moral criticism is), then all parties have an obligation to adhere to certain moral obligations of respect and dignity, including to the alleged wrongdoer. I don’t find parametricizing illegitimate in that case. I think the way you’re defining “a right to tell their own stories and define their own experiences” clashes dramatically with rights of dignity and fair/equitable treatment, and has historically manifested itself in extremely scary ways (including when it has been pointed at states).
David – You now appear to be equating not having a punishment metaphor for understanding dialogue between people (or from people to states) as meaning tehre’s no way of evaluating discourse (and you seem to link having punishment as a metaphor of the way you deal with someone else as respecting their humanity and dignity, and that’s just nonsense to me).
Again the assumptions you are making, and the work you are making words do, are not universally understood. They rely on suppositions which are based on your centrist/liberal/US position. It frustrates me that you won’t acknowledge that. But all pointing that out has done has lead you to add the word moral (which clearly is as loaded a concept as punishment, as full of assumptions and positioning), and I don’t feel like this conversation has been useful for either of us.
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