Tuesday, September 26, 2006

Question on the Relationship between Justice and Punishment

I recently spent a couple of hours talking a criminology student through various aspects of Foucault’s work – in particular disciplinary mechanisms and prisons – in the context of a paper she was writing about the success of prisons.

While this conversation was taking place, especially during the two hour intermission that was legal ethics (week nine – game theory and client counselling), the distracting question was what is the relationship between justice and penal punishment?

There does not seem to be any clear relation. But when the legal/justice system links punishment to justice, then there must seemingly be some role for punishment in the notion of justice.

Things seem to happen around here when questions are put forward, so lets treat this like the start of a discussion and see where it takes us.

5 Comments:

Blogger Samuel Douglas said...

I suppose that we have a selection of obvious (though not necessarily correct) contenders for this relation. (Please excuse my naivety of legal theory; I am only a philosopher-in-training after all.) Also please note that any time I make bold statements, there is an implicit ‘plausibly’ hiding in there.

Accountability: Justice might hold that perpetrators be held accountable for their actions. If being punished is a consequence of committing a crime, and being accountable includes facing the consequences of one’s actions. Put another way, Justice ideally forms part of the causal relationship between committing crimes and being punished. This is of course subject to an impossibly high number of ideal conditions. Furthermore, consider the following- if one is punished in an unjust manner then it makes no sense to say that one has not been punished.

Reparations: Justice might also hold that victims (direct and otherwise) deserve some sort of compensation for what has happened to them. This can include Revenge, where the victims take pleasure or satisfaction in the punishment of those who have wronged them, and also Compensation, where Justice facilitates the extraction of some bounty or other from the guilty party to be given to the victims.

Both of these candidates could suggest that Punishment serves a functional role in the notion of Justice, but I’m not convinced that this type of approach is really adequate. (Both could be grounded in anything from Utilitarian to Rule-Deontological values, and which scheme is adopted effects how these functional roles are treated.) It is important to note that belief in either on or both of the two candidates above might well be necessary for punishment to occur, but neither is sufficient. For example if someone believes in Accountability, but not in this life/plane of existence etc, then they will not seek to Punish, even though they believe in Justice. Therefore I’d say that either a belief that there is no other agency for Justice other than human or that non-human (eg Divine/Cosmic) authority is conferred to human agents or institutions is required to get either one or both of the aforementioned candidates off the ground in a serious way.
(Not that this gets us much closer to an answer).

28 September, 2006 11:51  
Blogger Captain Kickarse said...

The old try to get into other students pants by knowing about Foucault trick eh Martin. Nothing too controversial there Sam as you said, but I would like to draw attention to the role of punishment in utilitarianism: it doesn’t really care for punishment, that’s not really its agenda. In our legal tradition, and correct me if I’m wrong Martin, it appears that we have two major threads – the liberal and the utilitarian. It is the liberal tradition which has invested interest in punishment.

Liberalism is rights based and is interested in maximising the total of individuals ‘liberty’ or freedom. It therefore reduces somewhat to claims about property rights and claims about persons routed essentially in ‘potential’. We see property rights extending accountability to actions outside of our control, for example my car’s brakes fail and it rolls down a hill hitting another car, for which I may be held accountable to give re-imbursement for damages done (against their person or property), based in a projection of what the various parties’ previous persons have been (perceivable past actions) to their person in the future (potential future actions). We are to avoid impinging on others interests (potential to own or continue to own property or perform an action in the future), and if we do, then we are to give due ‘compensation’ to the afflicted, or in other words we are punished. To arrive at this justification for punishment, we have a metaphysical system of abstract entities (property and persons), projections of these entities, and the rights of these entities.

Utilitarianism is not interested in rights, or persons for that matter (note persons not ‘individuals’). It does however consider interests, though these are the interests of groups. The primary purpose of utilitarianism is to create environments which render its members productive. If a member of that group contravenes the law, punishment is actually counter-intuitive to utilitarianism as it is ultimately un-productive; instead it opts for re-utilization. It does not conceive of individuals past their current perceptible state, which is evaluated against every other member in the group. Rather than punish, its aim is to reward, and it does so based on its ‘objective’ evaluations of its members (objective in that it is visible to all members who is first and who is last, for instance Lucy is the best speller in her class because she came first in the test). Instead of punishing, a prison is a different environment which produces a different utility and as such ultimately rewards inmates who are highly evaluated. Granted the environments are artificial but the results are non-metaphysical and objective.

(If this is sounding very Foucauldian, then that’s because it essentially is, as I have increasingly found that although he aimed at a certain nuance emphasising visibility, generally he simply renamed utilitarianism to panopticism; I ask why when the basic principle of utilitarianism seems to be rendering actions perceptible. Granted utilitarian ‘ethics’ are generally thought of as being something a little different but I argue a) that they are stripped of the actual detail and are actually somewhat more distinct from the hedonistic ethics that it is often reduced to, b) we are talking about the legal tradition here (and as Foucault has demonstrated, this has been a very successful enterprise), and c) that’s not the way windmills work.)

Liberalism therefore amounts to a form of contract between abstract entities, whereas utilitarianism is based in membership in groups. That one is metaphysical means recourse to a metaphysical notion of ‘justice’ and the other rests on artificial structures and hence I suspect an artificial notion of ‘justice’.

28 September, 2006 16:37  
Blogger Captain Kickarse said...

Sorry, forgot to add my conclusion:

It may be looked at as the liberalism giving the ‘liberal’ and the utilitarianism giving the ‘democracy’ to the term ‘liberal democracy’. That liberalism likes to punish and utilitarianism does not does, as Martin observes, makes an interesting connection between the legal tradition’s habit of punishing while simultaneously not by actually having recourse to two separate and I would think incompatible notions of justice.

28 September, 2006 17:09  
Blogger MH said...

Know all the suave moves don’t you Rowan? Shame it’s her best friend I’ve a preference for …

What I found slightly interesting in these two posts – and it’s a point I just want to take a moment to reflect on – is that you both distinguish between liberalism and utilitarianism. Rowan, in particular, you made the point that the Anglo legal tradition has two main threads. The strange thing is, in the jurisprudence that I’ve come across over the past couple of months, that division does not seem to operate within legal thought. The state of play seems to be, in regard to this ‘cord’ (is that two threats combined?), is the figure of Mill who still has a dominate role in jurisprudence, and his position. Maybe this is just my lack in reading the material, but it is an observation I feel justified in making presently.

So I feel like briefly summing up where we are at, so that we might be able to move forward. We’ve got a couple of broad brush stroke accounts of the relationship, which vaguely account to those that seem to appear in the literature, but seem deficient for various reasons.

Now, here is the thesis I think I’m interested in. The problem with the relationship between justice and punishment is that there isn’t an account of justice capable of integrating a system of punishment. I would like to be able to attribute this to the fact that there has been deficiency in establishing real-world theories of justice, but feel out on a very insubstantial branch.

Thoughts?

30 September, 2006 10:20  
Blogger Captain Kickarse said...

I was always under the impression that Mill represented both these threads in that he was both a utilitarian and a liberal. This might just be my limited knowledge of him, but he is certainly considered an important figure in utilitarian thought. Exactly which Mill might be the issue, though I think you would be referring to John and not James.

You’re original question is ‘what is the relationship between justice and penal punishment?’ To this I responded that it the notion of penal punishment comes from the historical juridical investment into prisons, and outlined the two major justifications for implementing penal institutions. Would penal institutions exist if it weren’t for these traditions? Probably not.

What then is a ‘real-world theory of justice’ that justifies the existence of penal punishment and doesn’t historically exist? I’m really not sure what it is that you are asking and how it really differs from what has already been said. ‘The problem with the relationship between justice and punishment is that there isn’t an account of justice capable of integrating a system of punishment.’ If this is true, then why do we have penal punishment; the existence of such an institution based in an ethical/legal tradition would imply that there is such an account. You must treat the law as a historically contingent artefact in all instances; you are asking a question about the legal field that includes, though is not limited to, the interplay between justice and the law, which can only be answered through a study of that interplay.

I think what you are really asking is something more akin to: is there a justification for using the notion of justice that we do when implementing penal punishment? Again, the answer is probably not.

'Shame it’s her best friend I’ve a preference for …' I assume she won't be reading this then, unless this is you're plan to declare you're intentions to the 'preferred' victim.

06 October, 2006 14:04  

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