A Moral Aversion to Harming the Innocent

306 days until the first day of classes.

Motivated by comments made by David Jocquemotte, I have made a couple of attempts to get my previous post, Sam Harris and Peter Singer's External Moral Reasons out in the world a bit - so that those authors and their followers can at least take a look at and assess the objection.

In other news, I learned in an email from Dr. Boonin that he has not been following the literature on theories of punishment since he published his book. Which is too bad. It means he would likely not have an interest in reading my response either. But, I will finish the argument.

Which I should get to presently.

Let's see now . . . where did I leave off?

In Part I I presented a moral aversion theory of punishment.

In Part II I looked at Boonin's definition of punishment and showed how moral aversion theory was a theory of punishment on his definition.

In Part III I presented the consequentialist theory of punishment and some of the major problems with it - particularly the problem that it sometimes justifies punishing the innocent when it can do the most good.

Now, here, in Part IV, I will look at how moral aversion theory begins to tackle the problem of punishing the innocent.

Punishing the Innocent

Standard utilitarian arguments have a problem in that they justify punishing the innocent. They look only at the effects of punishment - not at the punishment itself (except at the harm contained within it). The guilt of the accused has relevance in the justification of punishment only insofar as it has relevance in determining the effects of punishment. The objection, “But he is not guilty!” can be set aside with, “So what?”

Moral aversion theory touches on this problem first by noting that the way to generate a moral aversion is to punish and condemn people for the types of actions that one wants people to have an aversion to performing. To create an aversion to lying one condemns liars. To create an aversion to theft one condemns and punishes theft. The punishment must be about that which one wants people to form an aversion to. It makes little sense to hold an innocent person's hand in a fire until everyone else is the room acquires an aversion to romance novels.

However, one can still obtain the benefits even of promoting moral aversions by punishing someone that people believe committed the type of actions that one wants to promote an aversion to. 

On the other hand, if one is going to invent a fiction to promote a moral aversion then one might as well make it a fiction through and through. A parable, novel, or book in which the villain is punished - or even suffers misfortune - because that villain committed a particular type of action would have the same effect without harming an innocent person. One could respond that specific harm may be particularly useful in bringing about specific deterrence, but if the accused is not guilty, there is no need for specific deterrence. 

This is going to bring up a question, “Why punish at all? Why not just use stories?” This is an important question, and I will return to it later. 

For now, I want to turn to a more direct answer to the problem of punishing the innocent. 

The critic of utilitarianism tells us a story about punishing the innocent. We find this intuitively wrong. What is going on when we find this to be intuitively wrong?

I suggest that this moral intuition is, in fact, an a moral aversion expressing itself in our feelings about a state in which an innocent person is harmed. Moral aversion theory then takes this moral aversion - this intuition – and asks what it means to have such an aversion and whether we should keep it. 

Technically, I would argue that what we have is a moral aversion to harming the innocent and, since to punish the innocent is to harm that person, this implies a moral aversion to punishing the innocent. 

What does it mean to have a moral aversion to harming the innocent? 

Having a moral aversion means that we are going to see the fact that a person is innocent as a reason not to punish that person. This reason is an end-reason. That is to say, our reluctance to punish the innocent person is not grounded on knowing that doing so will thwart some others desire (e.g., maximizing human flourishing). It means avoiding a state of punishing the innocent simply because because it is a case of punishing the innocent. This is true in the same way that a decision not to eat broccoli for somebody who has an aversion to eating broccoli is something that the person avoids for its own sake, not because eating broccoli will thwart some other desire or interest. It means avoiding a state of eating broccoli because it is a state of eating broccoli. 

Having a moral aversion to punishing the innocent also means that the agent has a reason to avoid eating broccoli even if it doing so would otherwise create a better world. A world that is better when we ignore the fact that it contains an instance of harming the innocent becomes worse when we add that fact to the mix. It means that the agent who is considering the option of punishing the innocent has a reason to look for another alternative that does not contain an instance of punishing the innocent - and to take it - even if the world in which the innocent person is punished - when we ignore that fact - would be a better world. It means accepting an inferior outcome when the otherwise superior outcome requires harming the innocent. 

However, it also means that if the other concerns are weighty enough, they may outweigh the aversion to punishing the innocent. For example, put the  survival of humanity sits on the scale opposite that of punishing the innocent, then the agent may overcome the aversion and punish the innocent. However, that will not end the foul taste that would come from harming the innocent to realize this important end. The health benefits of broccoli might give us a reason to eat it in spite of its taste, but it will not make broccoli taste good. The benefits of saving humanity from destruction will not make the fact that one had to punish an innocent person taste good either.

An aversion to harming the innocent is consistent with having no aversion to harming the guilty. However, the aversion would generate a motive to make sure that the person being punished is not innocent. This would motivate such institutions as a trial by jury and a presumption of innocence that must be proved beyond a reasonable doubt. 

What does it mean to keep the aversion? 

It means if we catch somebody intentionally harming the innocent, we are going to be disposed to condemn and possibly punish that person. We are going to punish that person BECAUSE that person harmed the innocent. We are going to do so while asserting that harming the innocent is to be avoided for its own sake – even when it is a means to achieving some other end. 

Now, if we justify creating and promoting this aversion based on its consequences, we are going to have to ask if some other set of motives may produce better consequences. If harming the innocent is sometimes useful, then perhaps we should not be generating an aversion to harming the innocent in all cases. Where punishing the innocent is useful, perhaps we should have no aversion to punishing the innocent in those cases. 

Boonin brings up these types of considerations in his objections to rule-utilitarian theories of punishment. The rule utilitarian argues that a rule to punish the guilty but not the innocent produces the best consequences, so that is why we should adopt this rule. Any specific case of punishment is then justified in virtue of conforming to this set of rules. Boonin argues that there are three ways in which the rule utilitarian defense can fail. It can fail in virtue of the fact that it is not the case that the best rules always prohibit punishing the innocent. It can fail in virtue of the fact that the rule utilitarian defense still implies the uncomfortable conclusion that if such a rule maximized utility, then punishing the innocent would be justified. Finally, the rule utilitarian defense needs to explain why it is not permissible to violate the rules when violating them would produce the best consequences. Boonin argues that a moral-aversion theory would have to handle the same set of objections.

I am going to look at these issues in the next post.