God and Justice (part I)

      I've decided to break this post up into two parts: abstract and practical. This is partly due to scheduling, since next week will be cut short by the holiday, and partly due to the fact that the intersection of religion and justice is a particularly interesting one for me. I'd like to begin with the abstract.

     Typically, religious doctrines prescribe a certain way of living or set of rules that are in accordance with what can be considered divine, transcendent laws. In many religions, holy books and scriptures also lay out consequences for what happens when one does not follow these laws, usually punishment in either earthly life, or in the next life. In many denominations of Christianity, for example, to be an unrepentant sinner is to be damned into hell for eternity. We might then view God as the ultimate judge, jury, and executioner.

     But what can the role of earthly punishment be in light of the existence of the God of Abrahamic religions? If we take God to be omniscient and omnipotent (as many religions do) and also consider Him to be a being that ultimately gives people their just deserts (reward or punishment in this life or the next), it would seem that humanity does not need to assume the role of the punisher. In the past, when monarchies ruled by justification of Divine Right, it was assumed that whatever punishment or action taken by the officials of the state were simply extensions of the will of God. Now that many of us live in democratically elected governments and states that are at least tolerant of religious pluralism, it is likely (and perhaps necessary for many) that we think of civil authorities role in a different way. For example, if God is going to do ultimate justice, perhaps our role in treating criminals need only to be protection of the broader community. This was partly the contention of St. Augustine: that the purpose of punishment in a secular state was not to realize any type of justice but to keep people in line; that peace and order were made possible by fear of punishment. Would this allow us to see our punishment of criminals differently? Perhaps. It might reduce the amount of judgment or amount of harsh treatment we place upon criminals. It might also lead us away from the prison system as the end-all-be-all form of punishment.

     Another interesting aspect of religion and justice is the blameworthiness of an individual created by God, which ties somewhat into my discussion of Neuroscience last week. If we take the principle of imago Dei, that all human beings are created in the image of God, and also believe that He knows everything about us, passing judgment becomes almost a trivial exercise. To illustrate my point, let's say that I am born with kleptomanical impulses that are so strong I cannot stop stealing things from my family members no matter how harshly I am punished. In a religious worldview, however, presumably I have both been endowed with that trait by my creator. In this sense, it would seem cruel at best to blame me as a person for my kleptomania if it was a trait given to me by God. This, I think ties in to the concept of original sin. If all humans are born with a sort of tendency toward sinning, then how can we truly be blamed when we do? As Thomas Talbott wrote in a paper titled Punishment, Forgiveness, and Divine Justice, "if we are subject to evil impulses not of our own making, then God has less to forgive us for, not more."

    It also seems apparent to me that the communities that consider themselves the most religious are some of the strongest proponents of the death penalty. Somewhat related to my first question, I am curious as to whether the death sentence is not as big of a deal in a religious worldview as compared to a secular worldview. This is not to suggest that the taking of a life is not a serious matter for the religious believer. Instead, for the believer, death in this life only serves as a transition to the next one, whereas for the non-religious, death is the ultimate end. In this way, the death sentence is not so much a judgment itself, but rather a sending of a person onto their true judgment. If that person is destined for heaven, it might be seen as a reward, sparing the person years of misery in jail in favor of eternity in paradise. If destined for hell, well then we have made sure a truly wicked person does not enjoy any more earthly pleasures.

    Many of the considerations above revolve around a certain type of religious conception, mainly a broadly-painted Abrahamic worldview, and it is certainly true that not all the assumptions made above apply completely to many religious believers. However, I believe much of what constitutes religious justice as a whole is a desire for what can be called cosmic justice: that in the long run, the universe we live in is fair, and that truly good people will have truly good things happen to them. As my Sophomore year Philosophy of Religion teacher put it, "it is the hope that, in the end, the good will out." The darker, other side of the coin , however, is that the wicked will get what they deserve. As we have seen, there are problems in both attributing wickedness and holding someone responsible for their wickedness. But I think the larger problem is that it frames cosmic justice as a zero-sum game: the good get what is theirs at the expense of the bad and there is no room for growth, for the world to be made better. The stage is set from the beginning. All there is left to do is to watch the cosmic pluses and minuses play out.

Other Thoughts and Considerations

• To be sure, there are messages of hope, redemption, forgiveness, and compassion contained in religious scriptures. There are also plenty of religiously-based outreach groups that are focused on moving away from retribution and vengeance and subscribe more to restorative-based approaches. Thistle Farms is an example of one such organization. 
• Some readers of scripture read many of the passages concerning retributive justice as ensuring proportional response rather than over-the-top ones. At least one analysis of the famous eye-for-an-eye passage as preventing wholesale slaughters of a village by way of response to the murder of a member of a different village.
• I'll be posting again on Wednesday with an analysis of certain religiously-prescribed laws of justice, some thoughts on the religious activism around the death penalty, and hopefully some responses to the above questions by various religious experts that I've been in touch with. 

    

   

This is Your Brain on Punishment

     In 1980s, Benjamin Libet, a physiologist at UCSF, performed a famous experiment that showed activity in the brain's motor regions about 300 miliseconds before the person has made the decision to move--effectively making Libet knowledgeable of the subject's intended action before the subject was. More contemporary studies have allowed scientists to predict whether a subject was going to press a button with their right or left hand up to 10 seconds before they performed the action with a 60% accuracy rate (Soon et. al 2008). These experiments, along with other advancements in the field of Neuroscience point us away from our standard conception of free will: we are not, in a pure sense, consciously aware of what actions we are taking and why we are performing them. It is only after we look back that we interpret them as freely chosen.

     How, then, can we reconcile these ideas with a criminal justice system that relies upon the (somewhat Kantian) notion that each person is a free-willed and autonomous individual. To be sure, there is already some consideration of the development of the brain in the way adolescents are sentenced. In Roper v. Simmons, the Supreme Court of the United States ruled that it was unconstitutional to impose capital punishment for crimes committed by those under 18. Part of the courts decision rested on amicus curiae briefs by psychological organizations, citing that parts of the brain responsible for decision making and impulse control are often not fully developed until one's late twenties. In cases of juvenile offenses, offenders can be argued to have diminished capacity for their actions, as the instrument of the decision-making is not fully formed.

     But where does this leave us in respect to the rest of criminal law? An oft-cited paper by Joshua Greene and Jonathan Cohen, indicating "free will as we normally understand it is an illusion generated by our cognitive architecture", seems to espouse a move away from retributivist notions of punishment toward consequentialist practices. In doing so, we avoid judging the 'soul' of the criminal for forces that he or she cannot control. Greene and Cohen believe this to be a more humane theory of punishment.

     There are other implications and problems that need to be taken into account. Interviews with many death row inmates reveal histories of subjection to child abuse, unstable family life, and inability to make caring connections with parental figures. They can be viewed, in Sam Harris's words, as "poorly calibrated clockwork". And given these early life events are both generally out of the control of the individual and can have a large impact on the development of the individual's brain, how responsible can we truly hold them for their actions? What of sociopaths who are born without the ability to empathize or assess risk? 

     Imagine that, in an experiment, we could take a child with all the genetic risks for criminality and subject him to a life where he lives in poverty, is subject to abusive relationships, and has no parental support. He goes on to commit a crime. Should we be surprised at the result? Probably not. Were many of these factors within his control? Some might say that he still had the choice over whether or not to commit the crime. Others might say that given the events of his life, he had no choice but to commit the crime. 

     A third question comes into play: do we still hold him responsible? To be sure, we can still take the crime seriously as something that has very real consequences and does very real harms to victims and society. But perhaps the blameworthiness of the offender is something that we can reconsider; that instead of judging his soul, whether or not he is a good or bad person, we should instead assess the harm that he or she has done, and make an effort to repair it. Those who go to prison are often faced with public scorn and shaming: they become outcasts and fringe members of society. It becomes much harder to hold gainful employment after being convicted of a crime. In eliminating the judgement of the criminal as having badness inherent to their being, we can reduce a hard distinction between the criminal and the rest of society. This is not to say what he has done is not truly his fault: he should still be held responsible for his action. But to publicly brand him as an outcast is not only a disservice to our findings about decision-making, but also makes it much less likely that he can ever reintegrate into his community.

Other Thoughts and Considerations

•  Foucault speaks a lot about psychiatry and other social sciences as politically-informed knowledge that beget their own forms of violence. Psychiatry can have the mentally-ill committed to carceral institutions and subject to treatments against their will. Foucault even speaks of psychiatry as a way of society 'suiciding certain unwanted elements of society'. This is especially relevant in light of many neuropsychologically-based treatments for criminals. One paper I read this week spoke about the ethics of frontal lobotomies and chemical castrations as forms of treatment in lieu of prison sentences. Another spoke about the possibility of brain-o-typing, a system in which brains with criminal tendencies could be detected long before crimes had been committed and protect society from them. These seem like the exact types of violence that Foucault would advocate against.
• This Wired article talks about the neuropscyhology of revenge. In a series of experiments, it was found that men who observed people getting their just deserts showed activation in the dopamine reward pathway of the brain. If we are to speak about human nature, then, perhaps we can also speak of the inherent desire we have to punish others for their transgressions (and the good feelings we get from it).
• Neuroscience is still an extremely young field in the scientific world. There is still much to be learned and what is en vogue today may be shown to be completely false tomorrow. In our considerations of neuroscience in relation to the justice system, we should be careful in taking supposed evidence as the bottom line for our judgments.
• Next week's topic will focus on the role and relation of religion to punishment.

The Power of the State

    Even before news of the PRISM leak and the revelation of the NSA's widespread surveillance practices, I had decided to spend this week reading Michel Foucault and his work on the relation of the state and practices of punishment. It occurred to me that in most cases, it is not the victim who decides the punishment, but rather those who we view as an impartial third party (judge, jury, etc.) who dole out justice. What, I wondered, made it so important that the apparatuses of the state be responsible for punishment?

     To start, I think it's important to address conceptions of legality and justice. Often, especially in our practical usage of the terms, the two are tied together: it is the role of the legal system to carry out justice. Yet, it would seem that there are occurrences where many would violate the law in order to do  what is 'right' (For an example of this, look to the many European citizens who hid and sheltered Jews during the reign of the Third Reich). Here, there is an appeal to an idea that there exists a  transcendent ethic of right and wrong beyond what can be defined by legalities, or put in different terms, there may be areas where natural law and laws of the state either do not overlap or are in direct conflict with one another. This idea has been long debated, notably in Sophocles's Antigone, over whether it can ever be morally acceptable to subvert the laws of the state. Should we accept the idea that there are moral rules that supersede those of the state, it would mean that, in some cases, the actions of the state in the name of justice are unjust themselves and should be met with punishment.

     On the other hand, we might argue that the laws of the state are the end-all-be-all of behavioral rules and that should a person take an action that violates the laws of the state, he or she deserves to be punished. French social theorist and philosopher Michel Foucault essentially says that this is how the state implementation of justice works: not on the basis of drawing from some transcendent rules of morality, but rather to ensure an obedient, conforming population in the name of creating a better society. We punish crimes like drug use and vagabondage because society wishes to promote the idea of the rational, conscientious individual that participates in society. Justice, then, is not a moral good, but rather an exercise of power.

    We can see this power relation in the way that crimes are framed as an offense against society as opposed to offenses against the victim. In our criminal courts, prosecutors are representatives of the state. In fact, trials have names such as California v. Greenwood or United States v. Windsor. In criminal cases, the individual is placed in direct opposition to the state and the rest of society. When he or she is punished, it is a unilateral penalty levied by the rest of society that the punished individual has no say in. When the individual is incarcerated, he is removed from society and, as Foucault points out in Discipline and Punish, by making time in incarceration part of the punishment, the prison expresses concretely the idea that the action has injured society as a whole.

     What this essentially leads us to is a Nietzchean conception of might makes right. Foucault stated this himself in a 1971 debate with Noam Chomsky:

It seems to me that the idea of justice in itself is an idea which in effect has been invented and put to work in different types of societies as an instrument of a certain political and economic power or as a weapon against that power.

What Foucault is  getting at is that justice, as exercised by the state, is called justice because it is wielded by those in power. And while we may justify the practices of the state's governance of legalities and justice with a Hobbesian social contract, it seems that citizens of the state do not have any real way of actually consenting to this social contract. They are, instead, mostly governed by the fact that the state holds power.

      There are two consequences of Foucault's notion of justice as power that I would like to discuss. The first is the punishment of the revelation of state secrets or criminal activity of the state. When Edward Snowden planned to release information about the NSA's PRISM program, a blatant violation of the United States Constitution, he fled to a different country in fear of retribution from the United States government. The treatment of Snowden and other whistleblowers who point out crimes of the government further demonstrate Foucault's illustration of justice as a Nietzchean function. Because the state has a monopoly on the exercise of justice, any action that harms the state, whether or not it is beneficial to her people, is treated with harsh punishment, force, and coercion.

    Secondly, I want to point back to the idea of justice as an instrument of both political power and also a weapon against that power. If justice merely becomes an exercise in demonstrating force, then those to whom the force is applied should be seen as justified in fighting back and taking power for themselves. In a lot of ways, I believe this draws a parallel to Hegel's master/slave dialectic, insofar as oppressed populations can also use justice as violent tool against their oppressors, since whoever possesses more power is the one who chooses what defines justice. In essence, this implies that a nation or state that uses violence and coercion to ensure justice is done cannot make complaints about being attacked by those it is applying violence and coercion to, since the state is endorsing a worldview of retribution and force. This is by no means an excuse for violence done in the name of justice; rather, it simply shows the logic of the age old axiom that violence simply begets more violence.





    The first video above is footage of American citizens celebrating the death of Osama Bin Laden. The second video is of  Palestinians celebrating the 9/11 attacks on the World Trade Center. While there are certainly very relevant and important differences between the two, both depict ecstatic celebrations of the death of others in the name of justice being served. When force and justice are tethered to each other in a way that they cannot be unbound, I expect this is the way the world will continue to be.

Other Thoughts and Considerations

• The power of the state is not always exercised by those in control of the state. Power, I think, can be much more diffuse and invisible than is tangible, especially in respect to the way members of societies interact with one another. Foucault's chapter on Bentham's Panopticon in Discipline and Punish is a great tool for understanding this, and also a great tool for examining the NSAs recent actions.
• In the Chomsky/Foucault debate, Chomsky had an interesting response to Foucault's conception of justice : "And in such a circumstance, the kind that you describe, where there is no question of justice, just the question of who's going to win a struggle to the death, then I think the proper human reaction is : call it off, don't win either way, try to stop it-and of course if you say that, you'll immediately be thrown in jail or killed or something of that sort, the fate of a lot of rational people."
• Next week's topic will likely be on the intersection of neuroscience and justice.

The Lex Talionis, Retributivism, and a Fair World

     In terms of justice, the lex talionis is one of the most long-standing guidelines for how to treat criminals and what is essentially the golden rule of retributivism: the criminal deserves the crime he committed inflicted unto himself. As Leviticus 24:20-21 states, "fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted on him." 

    Despite its lengthy presence in philosophical thought, it's not too difficult to find some problems with the lex talionis. One problem is with the difficulty in punishing certain kinds of offenses that would involve some kind of imbalance between punishment and crime. For example, should the rapist be raped in return? What about the punishment of a kidnapper if he or she has no children or loved ones? Other problematic crimes arise when there are no victims, or the victims are so numerous that any harm done becomes so diffuse that it is impossible to measure (crimes such as tax evasion, drug use, and so on). Many retributivists defend this problem by formulating the punishment in terms of some type of proportionality to the crime: that in some way, the punishment must be proportional to the harm done and culpability of the criminal. And while this seems like a good principle to abide by, it still seems that there is no non-arbitrary way to establish a good measurement of proportionality of harm to both the victim and the offender.¹ In other words, in keeping with this principle, how can we legitimately measure how much harm incarceration does (for a certain time period) as compared to the harm done by buying illegal substances? While, in certain frameworks, it might be logical to say the criminal reaps what he sows, there is certain difficulty in establishing what exactly it is that he has sown.

    The idea that the criminal should get his just deserts, despite its ancient origins and criticisms, is the backbone of retributivist philosophy. One of the main defenders of retributivism is Immanuel Kant. As S.I Benn writes,

"The most thoroughgoing retributivists, exemplified by Kant, maintain that the punishment of the crime is right in itself, that it is fitting that the guilty should suffer, and that justice, or the moral order, requires the institution of punishment. This, however, is not to justify punishment but, rather, to deny that it needs any justification...Its intrinsic value is appreciated immediately and intuitively."²

     For Kant and many other retributivists, then, we see that punishment is not a means to an end (i.e. deterrence of crime, safety for the community, reform of criminals, or other such justifications of punishment), but actually an inherent good without need for justification.  In fact, for Kant, justice would be a moral evil were it used merely as a means to deter crime or reform criminals since that type of punishment would violate his categorical imperative, which states that a human being must never be treated as a means to an end. Kant states as much in his writings:

"Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else."³

     In this kind of formulation, it becomes apparent that for Kant, punishment and justice are primarily about fairness. A person's punishment is not based upon its utility to society, but rather an idea of the world as a rationally ordered place that we have an duty to keep in balance. One formulation of retributivism might simply be that we have a duty to maintain a balance of happiness and suffering among people proportional to their moral actions.⁴ And while we might think that this is a foolish in a certain sense, that it would be impossible to maintain a society in which this balance were always maintained, it's undeniable that this type of balance makes a certain kind of logical sense.  In fact, psychological research has shown that people generally have a strong interest in maintaining the appearance of a 'just-world' that makes logical sense. In a series of experiments in the 1960s, Melvin Lerner noted that in cases where people observe harm or suffering visited on someone else, they tend to degrade the other person, believing that he or she has done something to deserve said suffering. It may be ingrained into humans, whether by nature or conditioning, to view the world as governed by a cosmic game of cause and effect in which those who do bad naturally have bad visited unto them.

     But I think it is fair to say that any proper analysis reveals this to not be the case. We are fully aware that bad things happen to good people and vice versa. We hear stories of newborns who diagnosed with a terminal disease before they have even reached a year of age. We hear stories of corrupt bankers who live out their lives in prosperity without ever facing the consequences for embezzlement or other immoral practices. And perhaps Kant would see this as evidence that we have a duty to fight harder to maintain this balance, that there is a great necessity to bring things to an even keel. But I think that the visible 'unfairness' in the world perhaps points toward the fact that a supposed duty to maintain balance in the world underlies a misrecognition of both human motives and cosmic forces.

     In one sense, Kant's formulation of retributivism assumes a society of autonomous, rational equals. In his formulation of justice, he takes for granted that each person within society has autonomous freedom and is capable of rational thought. This, I believe, ignores many of the conditions under which wrongdoing occurs, such as that of poverty, extreme duress, and so forth. And while the assumption of autonomous offenders is certainly problematic, what is possibly even more flawed is the idea that those who dole out punishment can be dispassionate and fair-minded. As James Q. Whitman points out in "A Plea Against Retributivism", when we punish another, we tend to hold it over their heads: we place ourselves as superior to those we are punishing. In the way that Kant's formulation of retributivism implicitly involves a forfeiture of rights on the part of the criminal, so do we come to degrade offenders as socially inferior.

     Kant would likely contend that to treat someone on the basis of their action is to respect them as a rational autonomous being. However, it would seem that any system of punishment that places punisher and offender on unequal social levels is not capable of allowing for any sort of respect between equals. Nor does it allow for healing, growth, or improvement for either the offender, victim or the punisher. We must also not ignore the fact that punishment effects both those who receive it and those who carry it out. When blame is assigned in any situation, it tends to be something that gets people excited and vindictive.

    So while retributivism can certainly be seen as a (relatively speaking) logically consistent system, I believe that it does not do very much to foster the growth of humanity on both an individual and societal level. Much in the same way that Freud in The Future of an Illusion asked whether or not humankind might 'grow up' and move beyond religious belief, I am curious as to whether, in our consideration of justice, we might be able to move beyond a hyper-logical viewpoint of "he did this to me, I should do it back to him" toward a system that can involve growth and healing for each person involved. Is it possible to conceive of justice as something more than a zero-sum game?

Other thoughts and considerations

• It seems that one's political leanings probably inform the types of justice they desire, which likely stems from their overall worldview. For example, I am interested in the way that conservative media has garnered a focus on urban crime and gang violence in comparison to liberal outrage over corrupt financial practices. This is certainly a simplification (there are plenty of counterexamples), but it is something that deserves some further research.
• Consequentialism is often presented in opposition to retributivism. In a simple form, a consequentialist conception of justice states that justice is done in the aim of some greater good that benefits society in a utilitarian way. There have been many attempts to show that retributivism is simply a modified form of consequentialism, thus opening it up to criticisms of general utilitarian theory. While there are certainly relevant differences between the two conceptions, both tend to view those who commit crimes as somehow 'less-than' as compared to those who have not committed crimes. Both also seem to view the offender as the main concern of justice while the victim is regarded as secondary to the process. In a certain sense, this makes the two  conceptions different sides of the same coin, as both are concerned with inflicting suffering on the offender.
• Next week's topic is likely to be the political execution of punishment and the way that justice relates to the state.

---

1 Summarized from "Retribution and the Theory of Punishment" Hugo Adam Bedau The Journal of Philosophy , Vol. 75, No. 11 (Nov., 1978), pp. 601-620 ^↩
2 S. I. Benn, "Punishment," in The Encyclopedia of Philosophy, ed. Paul Edwards, 8 vols. (London: Macmillan Publishers; New York: Free Press, 1967), vol. 7, p. 30. ^↩
3 "The Metaphysical Elements of Justice. Part I of The Metaphysics of Morals". Translated by John Ladd, Indianapolis, 1965, p.100^↩
4 "Kant's Retributivism" Don E. Scheid Ethics , Vol. 93, No. 2 (Jan., 1983), pp. 262-282^↩

Welcome to Reconsidering Justice

     This blog is dedicated to following a research project on the differences between restorative and retributive justice and the way each viewpoint contributes to our understanding of how to treat others. It will be a 10 week project revolving around exploring questions like:

• What are the implicit assumptions and implications that can be drawn from societies that utilize retributive justice and those that utilize restorative justice?
• What is the purpose of punishment? What should be the ultimate goal in punishment? In what form should punishment be delivered? Who should administer punishment/justice?
• If someone acts ethically solely because they are afraid of punishment, is this truly acting ethically? Does it matter?
• What role does religion play in justice? What forms of punishment are endorsed in a religious worldview? What role does punishment serve if there is a higher being that will ultimately hold individuals accountable for their actions?
• Contemporary science increasingly points us toward the idea that many of our behaviors and actions are somewhat outside of our conscious perception and are based on intricate processes within the brain. How can justice be administered in a way that is fair and appropriate in light of this neurological model of behavior and decision making?

   
  I will be attempting to post at least once each week (generally on Fridays) and I welcome any feedback, criticism, thoughts and comments you may have.