Boonin's Definition of Punishment

308 days until my first class.

In our top story today, Atheistically Speaking has posted the podcast interview in which I comments on how implicit biases are impacting the election. Atheist Ethics and Implicit Biases with Alonzo Fyfe. I hate listening to myself, so you can tell me if it is any good.

11 days until I show up at the University of Colorado Department of Philosophy to introduce myself.

I am still working on my response to Dr. Boonin's book The Problem of Punishment. It is an extremely good book - not only because of its arguments concerning punishment, but as an excellent summary of the basics of moral theory. He has a short section on motive utilitarianism that I have just gotten to . . . I will have a lot to say on that issue.

Meanwhile, I am still writing my response. Attached is a draft of Part II of that response.

Part I on The Theory of Punishment can be found here.

Part II: The Definition of Punishment

To make sure that this discussion remains relevant to the topic at hand, I would like to look at it under the light of the definitions of punishment that you provided in your book.

You identified a number of criteria at least for the type of punishment you sought to examine in your book, and I would like to provide an account of how we can understand those elements of reward theory in those terms. Punishment, in this theory, involves creating states to which agents are averse, or removing states that an agent desires, to trigger the reward system and thereby modify an agent’s desires and aversions - specifically, to promote aversions to certain act types such as vandalism, lying, and breaking promises. 

Harm

You specify that one of its requirements or punishment is that it involves harming the person being punished. 

On the theory being put forward here, punishing a person involves activating the reward centers of the brain by either creating a state of affairs to which the agent is averse (e.g., causing that person pain or some form of psychological discomfort) or removing a state of affairs that the agent desires (e.g., taking away money with a fine, taking away freedom with imprisonment). Both of these types of actions count as harming an individual. 

This is to be contrasted with a reward, which is creating a state of affairs that the agent desires (e.g., a cash award or public acclaim) or removing a state of affairs to which the agent is averse (e.g., removing the soldier from K.P. duty). 

One could object that, in shouting at somebody or in berating them, one is not actually harming them. Joel Feinberg (Harm to Others: The Moral Limits of the Criminal Law, Oxford University Press, 1984) asserted that to count as harm, the action or state must be one that thwarts a “strong and stable” desire. What thwarts a weaker or transitory desire only “hurts” an individual. 

This distinction may prove relevant. However, to introduce it here begs some questions. If it is the case that there is some severity of harm that it would be wrong to cross, we will need to find out where that point is there is a point at which “hurt” becomes “harm”, we are going to have to ask some questions about where that point can be found, and whether all state punishment can be found only on the far side of that line. On the other hand, if the objections to punishment apply to all forms of punishment, then the fact that it rules out yelling at another person or condemning/criticizing her is something we need to look at. 

In other words, if it turns out that creating states to which an agent is adverse in order to mold the interests of others is sometimes permissible, and state punishment is prohibited only because of its intensity or category, we are still going to need to answer some questions. What is the threshold or the category of punishment that is prohibited? Why that particular threshold or that particular category? If we have no answers to these questions, then we may have to ask whether our arguments regarding punishment implies a moral prohibition against ever intentionally activating the reward centers of the brain by creating a state of affairs to which an agent has an aversion or that lacks something the agent desires. 

Your definition mentions “harm”. The moral aversion theory of punishment being presented here mentions states of affairs that contain elements to which an agent has an aversion or removes a state which the agent desires. I will have more to say on the relationship between these concepts later. 

Intention

Your second criterion for punishment is that the harm is done intentionally. Accidentally causing harm - as when we accidentally step on another person's foot.

An accident such as this could activate the victim's reward center and trigger an aversion to crowds or to others walking too close. This is punishment in the psychological sense, but is not punishment in the sense that we are concerned with here. 

The moral aversion theory I am proposing says that the punisher triggers the reward system intentionally. The punisher may not know that this is what he is doing. However, it is also the case that a person who takes a drink of water may not know that she drinks H2O. In the case of harm, the agent knows that he intentionally inflicts harm – and that is sufficient. 

Retribution 

A third criterion that you proposed is that punishment involves retribution, in a sense. "[T]o be a punishment, an act must involve intentionally harming someone because he previously did a prohibited act." 

The moral aversion theory says that agents trigger the reward system because the person being punished performed an action that the punisher wants to make the object of an aversion. To promote an aversion to lying, we punish those who lie. To promote an aversion to vandalism, we punish vandals. To promote an aversion to breaking promises, we punish promise-breakers. We punish promise breakers because they are promise breakers, vandals because they are vandals, and liars because they are liars. 

On this matter, I want to pull one item off this list and set it aside for separate consideration – punishing somebody “because he broke the law.” This creates problematic cases. What about a law that prohibits helping runaway slaves, or that requires people to help in rounding up Jews? Or even a law prohibiting homosexual acts? Is there an obligation to refrain from certain acts just because it is illegal? There is reason to suggest that the law cannot legitimately punish people who cannot be justifiably punished for other reasons. The judicial system simply puts a wrapping around that punishment, establishing rules and procedures but not justification. I do not know if I can actually defend "punishing somebody because he broke the law". But I may be able to defend punishing vandals, thieves, rapists, and murderers because they performed an act of vandalism, theft, rape, or murder.  

Reprobation 

Another criterion of punishment you mention states that punishment must contain an element of admonition or condemnation of the person punished. “[T]o count as a punishment for an offense, the act must express official disapproval of the offender.” 

Moral aversion theory says that punisher trigger the reward system to create an aversion to act-types such as lying, breaking promises, assault, and vandalism. They identifies these things as bad, and as something that the agent (all agents) should dislike.

Charging somebody a fee for a marriage license doesn’t say, “getting married is something you should not be wanting to do.” Fining a person for littering, however, does carry that kind of message. 

Authorization

Your final criterion you mentioned said that to count as punishment, the act must be performed by an agent who has the authority to punish. 

This may be a useful criterion to identify the subject of this discussion. However, it does introduce a potential problem when it comes to justification. 

Let us assume that we can identify a case of punishment which has all of the elements of punishment except that it is not carried out by somebody authorized to do so. In the one case, punishment is considered justified while, in the other, it is not. Perhaps you will want to say that this is not punishment. Still, the fact that it has all of the elements of punishment except the "authorized agent" element, and it is permissible, will invite us to ask what it is about introducing the "authorized agent" element that makes it impermissible.

You looked at examples in which it was considered immoral to harm an agent except when one was an authorized agent seeking to punish a wrongdoer. You asked why it was permissible to treat the wrongdoer differently. This approach suggests that the wrongdoer is not being treated differently. Rather, the punishment is justified in the absence of an authorized agent. The authorized agent is simply a part of the wrapping that we put around certain examples of punishment that is ultimately already justified.

Summary

Punishment, within the moral aversion theory, is acting to realize states to which the agent being punished is adverse, or to remove states that an agent desires, intentionally, because the agent performed an act type which people have many and strong reasons to promote an aversion to performing, as a way of promoting aversions to those act types. It need not be carried out by people in authority. However, because it involves intentionally causing harm, there are reasons to regulate and restrict its application - to establish rules to help ensure that it serves its purpose well.