Law in Contemporary Society

Moral Culpability and Punishment

-- By DanKarmel - 26 Feb 2010

Moral Assumptions in the Law

Our justice system is more than carelessly replete with moral phraseology. It is, at its most basic levels, built upon assumptions of morality. We throw around phrases like "good man" and "black hat" with a tone of irony, but such language reflects the truth about the way most of us view criminal justice.

Granted, most people understand that these labels are not entirely binary. We talk of shades of gray and "hating the crime not the man." These are modest acknowledgments of the absurdity of reducing human beings to these labels. However, they muddle an even more important assumption. When we punish someone, in the criminal system or otherwise, there is a core and necessary belief of culpability.

The Myth of Moral Culpability

Is culpability a myth? At best, it is exaggerated. Holmes touches upon this in The Path of the Law, when he writes, "If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction."

Though he attributes this idea to "men of science," there is reason to believe that he himself holds such a view. In the process of criticizing the second fallacy of the law, namely that logic is the only force within it, he concedes that "in the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason."

As I understand it, Holmes is conceding that law, like anything else in the universe, must be some combination of inevitable logic and unpredictable randomness.

No. This was discussed in class. Holmes is saying that logic is a structure of cause and effect that human minds impose on the cognitive stream coming to them from the world around them. Because humans think in terms of cause and effect, it's tautology to say that logic underlies law, or anything else. But that's in the eye of the beholder, not in the essence of the thing.

The fallacy of logic in the law is that we assume the law is logically deduced from inherent universal principles that hold some sort of normative value; that the logic of the law is anything more than the logic of where stones lie in a ravine.

No. Now you have a different proposition than the one Holmes is putting, and the difference is precisely the shape and size of the point he was making. The logic of the law is nothing more than the cognitive limitations of the people who put the stones in the ravine, for whatever purpose they thought they were putting them there.

Free Will

This view of the universe is relevant to culpability because it leaves no room for free will.

Utterly incorrect. Not correct from your premises, let alone from Holmes' premises. His original speculation, that there might be human beings genetically predisposed to the commission of crime, turns out to be irrelevant both to the question of whether to punish and (more evidently) to the "question" of "free will." I was genetically disposed to late-onset near-sightedness, but in the current state of human cultural development that has no effect on my range of function, because I can "choose" to wear eyeglasses or implanted lenses, or to have my own lenses resculpted by laser radiation. Roman Catholic and most Protestant theology since Augustine has emphasize that human beings are inherently sinful by fallen nature, yet even the most rigid of Christian dogmatic structures (which for these purposes we could locate in Calvinism, I suppose) have no apparent difficulty reconciling determination and free will. From a Legal Realist point of view, the whole question is nonsense, but even those who take it seriously don't reach your conclusion, which is tossed off as though it were self-evident, which it most certainly isn't.

Free will is a logically incoherent notion; cause and random effect; controlled contingency.

What does this mean? Whatever one wants to say about the intellectual system of Jean Calvin, which assorts free will with precognition and predestination, "logically incoherent" isn't going to be it.

However, the debate over free will goes beyond the present purpose and is not entirely necessary. It is enough to acknowledge that we are products of many influences beyond our control, whether they are "nature" or "nurture," and that we are to a large degree not responsible for who we are.

That's not even a proposition without a definition of "responsible" and an actual specification of this "large degree."

How do these concessions affect our assumptions of moral culpability? To the extent that we accept that a murderer never had the choice to abstain from his crime any more than we had the choice to commit it, does that mean we ought not punish?

But we don't accept either conclusion. It's obvious that we have moments in life where we choose whether or not to take human life: I've only tried twice, and to the best of my knowledge only succeeded once, but there's no question that I made choices on those occasions. And no one is a "murderer" unless the state can prove beyond a reasonable doubt not only that he killed, but also that he formed a prior intent to kill, and took concrete steps to fulfill the intent, resulting in death. So the state must prove choice.

The Right to Punish

We all want to say that of course we can punish. Who would suggest that society take no action against any murderer? Thomas Hobbes wrote, "[B]y the right of nature, we destroy (without being unjust) all that is noxious, both beasts and men . . . justly, when we do it in order to our preservation." In Hobbes' view then, punishment is simply part of an extensive and transitive system of self-defense. Of course, the "right of nature" from which Hobbes draws his authority is only another way of saying "completely unsubstantiated," so we must decide on our own if this true.

Most agree that you have a right to defend yourself against an unjustified attacker. But the analogy doesn't work unless you can figure out who is doing the attacking. If we accept, to enough of a degree, that we are not responsible for our own character and thus our own actions, then the problem is less like a murderer attacking an innocent person and more like a sinking ship without enough life vests. There are two people on the boat and one vest - is the first person to take the vest a murderer?

Someone should take the vest, but not because that person is "good" and certainly not because they have a "right of nature." If someone doesn't take the vest then they will both drown. I do not believe that our society is a sinking ship, but it does have serious problems, and most importantly it doesn't provide everyone with what they need to stay afloat. So who gets the vests?

Your metaphor clogged your thought process. You are now using the question "who should receive invaluable benefits?" as a proxy for "who should be punished?" Obviously this is not a good way to articulate your thoughts.

Is the Criminal Justice System Justified?

Perhaps it is easy for me to say, but the criminal justice system needs to punish criminals. It is not just a matter of the people in power choosing to save themselves. To simply eradicate the justice system would, as far as I can tell, lead to chaos and destroy society. Even if a murderer cannot be held morally culpable, he must be held legally responsible; not only for the "good of society," but for its continued existence.

All that for this?

The problem is that maintaining these assumptions of good people and black hats allows us to ignore that to a large extent it is a system of lottery winners and losers. Acknowledging that we are all products of a society does not mean that we cannot subject criminals to the justice system. However, perhaps by being aware of the role we collectively play in the crimes committed in our society, we can refocus our efforts on creating conditions which minimize the need for this system of self-defense.

And this?

The argument here is patchy, and the conclusions to which it supposedly leads are jejune. If the best you can do is advise against "eradicat[ing] the justice system," while proposing to "refocus our efforts on creating conditions which minimize the need" for criminal justice (without specifying how this is to be arranged), then the preceding analysis has not, even in your own view, achieved much new clarity on fundamental issues. It seems likely, indeed, that a new idea needs to be added to the mix.


Webs Webs

r6 - 13 Jan 2012 - 23:14:11 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM