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Intolerable Wrong and Punishment

  • Elizabeth H. Wolgast (a1)

Extract

A common justification for retributive views of punishment is the idea that injustice is intolerable and must be answered. For instance F. H. Bradley writes:

Why … do I merit punishment? It is because I have been guilty. I have done ‘wrong’… Now the plain man may not know what he means by ‘wrong’, but he is sure that, whatever it is, it ‘ought’ not to exist, that it calls and cries for obliteration; that, if he can remove it, it rests also upon him, and that the destruction of guilt, whatever be the consequences, and even if there be no consequences at all, is still a good in itself; and this, not because a mere negation is a good, but because the denial of wrong is the assertion of right.

A wrong is something that ought not to exist and calls to be obliterated. If anyone is able to remove it, he is obligated to do so or the wrong will also be partly his. To deny or obliterate a wrong is to assert right, Bradley says—as if the two things were counterpoised, one able to cancel the other. It reminds us of the balance held by the figure of Justice, and of debts and credits in accounts. Paying a debt erases it; the debt no longer exists. In a similar way punishment is supposed to erase wrong.

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1 Ethical Studies (Oxford University Press, 1952), 27.

2 Die Metaphysik der Sitten, in Kant', Werke (Royal Prussian Academy Edition) Vol. vi, 333. I have used Bradley' translation of the passage here.

3 The Brothers Karamazov, translated by Garnett, Constance (New York: Modern Library), 24.

4 Loc. cit.

5 In Colin, Turnbull'The Mountain People (New York: Simon and Shuster, 1972) we see a tribe in which it is hard to imagine moral judgments of any kind at work. This is due to the fact that the background of normal behaviour is so callous and cruel as to give little place to morality as we understand it.

6 I owe a debt to Neil MacCormick on the Roman understanding of justice and punishment, and their connection with modern terms of law.

7 Cf. Benn, S. I. and Peters, R. S., Social Principles and the Democratic State (London: George Allen & Unwin, 1959), 187.

8 Of course if we believed that the universe was like this, we would infer from someone' misfortune that he had done something in the past to deserve it. But isn't this really a familiar idea? For instance, when someone is struck with a mortal illness it is very common to ask, what did he do (what did I do) to deserve this? The desire for a just universe is much deeper and more pervasive in our lives than our need for a just government.

9 The classic exploration of this kind of reasoning is found in Dostoyevsky Crime and Punishment, where Raskolnikov reasons that, since the world would be a better place with the old moneylender dead, he is entirely justified in killing her. Dostoyevsky shows us that the inference is not only unjustified but expressive of a kind of arrogance; it exhibits the sin the ancient Greeks called hubris, which was disrespectful comparison of oneself with the gods.

10 A state of perfect justice, though it sounds clear enough, is fugitive and ultimately obscure, I believe. Besides being a state where wrongdoers come to misfortune and the good are brought good fortune, what happens to those who have been wronged? What is to be given to them for their suffering? And is their suffering necessarily compensatable? The questions Dostoyevsky raised arise here: can we have a state of perfect justice once a wrong is done? Or is a really just condition one of moral innocence—a state in which no wrongs exist in the first place? But such a state is not a useful ideal for a real community; nor is it to be identified with justice, whichtreats the righting of wrongs. In short, if the notion of justice depends upon that of wrong or injustice, then no ideal of justice is really conceivable; wrong can be punished but it cannot be obliterated.

11 Two examples of figures who justified their actions byreferring to a larger and divine pattern were Socrates and Jesus. Their justifications strike their hearers as curious, however, for theclaim that one acts as an instrument of divinity rests upon the unprovable belief that one is such an instrument and has divine connections. A similar claim that one was acting as the instrument of the Zeitgeist might be received with the same scepticism that greeted bothSocrates’ and Jesus’ appeals. If one accepts that these figures are what they claimed, however, then they are allowed to act as on the stage of the Fates or gods, which is to say, removed from the human arena. But this is because they are in one sense superhuman themselves, divine rather than simple mortals; and so the distinction I have drawn can be defended even here.

12 This provides some illumination for the reason we find superhuman figures so attractive in thinking about correcting wrongs—Superman, for example. The idea of taking a role in the cosmic activity must have been terribly attractive since ancient times, when some mortals transcended the human limitations and some gods came to earth in human form. The Delphic oracle was a kind of bridge between the worlds, and so a source of information from the one perspective to the other.

13 An earlier version of this argument was given to the Jurisprudence Department at the University of Edinburgh, and this one has profited from the ensuing discussion. Helpful comments were also made by Renford Bambrough, Neil MacCormick, Rush Rhees and Jenny Teichman, and by Steven Sapontzis who gave it a final thoughtful reading.

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Philosophy
  • ISSN: 0031-8191
  • EISSN: 1469-817X
  • URL: /core/journals/philosophy
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