Retributive Theory

Retributive justification for state punishment of criminal activities emphasizes proportionality between the punishment and the crime being punished. There are three options for proportionality in a given case. There can be Equal Proportionality (EPro), Lesser Proportionality (LPro) and Greater Proportionality (GPro).

EPro is represented by 'an eye for an eye and a tooth for a tooth'. If someone commits a criminal wrong against someone else, the punishment should be equal against the offender, sometimes taking the same form. It is intuitive and has the strength of an appeal to justice, balancing the scales.

LPro maintains that the punishment should be proportionate, but it denies that it needs to be the equal. This is sometimes justified by saying that a state's punishment is justified because it censures and condemns the offender, and it sends a message to the offender and others that the act is not tolerated. LPro theorists also sometimes argue that strictly equal punishments are barbaric. How is a government justified in doing to the offender what the offender did to others if it is an offensive act?

GPro is less popular than I think it should be. I do not know of a pure retributivist who advocates GPro. How would one justify the GPro position from a purely retributivist perspective? I think the general flow of the argument is pretty simple. A infringes on one of B's human rights without provocation, and this offence has a severity of 2, on a scale of 1-5. This is wrong; it is unacceptable. The state with jurisdiction should, after a fair trial resulting in a jury verdict and so forth, find a sentence with a severity of 2. However, it should sentence A to more than a level 2 punishment. This is due to its justified role in punishing such an offender. An equal-consequence response by the state to an offence would not be equal because the offender was not justified in his infringement on B's human rights but the state is justified in its punishment. Therefore, in order for it to be equal in all respects, the punishment must add to the equivalent-consequence sentence an addition for the unjustified violation of B's human rights. So, GPro can be justified if punishment is understood to be properly equal to unjustified crime.

Banks and (Other) Corportations

Something just occurred to me, and I wonder what you think of it.

It seems the liberals and Washington are talking from two perspectives on what is really one issue. Are we in favor of big corporations or not? We bail out the banks. You might say, 'Well, "our" banks are the foundation of doing business in the US.' We also bailed out GM, and we have many non-GM cars all over the country.

On the other hand, Wal-Mart is the great evil. It's a big corporation and, therefore, evil. We want small businesses who pay good wages, not Wal-Mart who can force people to take jobs at low costs.

What is the difference between banks and car companies on the one side and Wal-Mart on the other? They both make profits in general, quite a lot I would guess. If you work for a bank, are you getting paid a large amount of money? If you work at a car factory, are you raking in the dough? Why are there opposing views of these big businesses?

Criminal vs. Civil Law

Once again, start with the terms. It is typical to say that the criminal law is the part of the law which forbids or commands behavior because behaving in that way or not behaving in another way is disadvantageous to the larger community, not just the two parties involved in the initial behavior. Civil law is said to deal with disputes between individuals where there is a disagreement or an allegation of negligence which may or may not have caused harm to someone (http://www.cscja-acjcs.ca/criminal_civil_law-en.asp?l=4).

I just want to suggest another way of defining criminal and civil law for a government who takes its job to be to punish those who infringe on the rights of others. Criminal law would consume careless negligence resulting in harm because one cannot be allowed to be thoughtless with the lives and welfare of others on the line. It seems civil law would be reserved for contract negotiations (before there is a breach).

As it is today in America, as I understand it, criminal cases can result in various forms of punishment, any goods or resources that are transferred away from the defendant go to the state. Most civil-case settlements or rulings, on the other hand, transfer goods from the defendant to the plaintiff. This would change. Even assuming states can actually be offended, disadvantaged, or harmed by a crime, appropriate criminal cases would include transfers of goods from defendant to victim(s). The damage done to X by Y when Y steals X's $100 (assuming it is not traumatizing, etc.) is mostly remedied when Y is commanded to pay X $150, $400, whatever. Perhaps there would be an additional penalty for the effect the defendant had on the larger society or on the state.

It seems to me that criminal law should include more behavior, that civil law should include less, and that criminal law should include a new type of punishment in its courts: restitution directly to the victim.

One Necessary Characteristic of Human Rights

Human rights do not conflict with each other without someone making an infraction on a human right.

It is easy to see the outlines of the argument when one considers rights as God-given. God does not contradict himself. If rights natually came into conflict, God would, apparently have contradicted himself because the rights in conflict could not both be respected, i.e., we would be unable to treat our neighbor as he or she ought to be treated.

If rights are given by a community, they must be treated as inflexible (seen as something that cannot be justly trampled on or otherwise broken or ignored). If the majority's acceptance or promotion of an infringement justifies the transgression if a right, then human rights reduce to near, if not complete, meaninglessness.

Without settling on which human rights exist, there is little to say about how human rights will affect specific policy decisions. We have to be able to state what these rights are if we are to pay careful attention to protecting these rights. This stating of rights (including the times at which it does not apply as one might intuitively think) is required to make the best policies and to protect human rights. For example, if a human right were well-stated as 'any person who is a government official has the right to drive anyone's car whenever that official pleases', then a good law would be that it is illegal for a non-government-official to refuse to lend a government official his or her car. This would protect government officials' right stated above.

I wrote this because I am afraid that we are seeing increasing amounts of policies that are made in the name of human rights, but these rights and the other rights (like right to property) are not being stated at all, much less as a complete framework of interrelated and coherent rights. Without this, we are in danger of promoting some supposed rights by infringing on other supposed rights without realizing what we are doing. An increase in the number of related and explicit statements of rights we use in policy discussions will increase the clarity with which we view policy decisions.

Seeing Citizens as Individuals is Key

I would especially like feedback on this post. I don't feel as sure as I usually do about this one.

The government's seeing its citizens primarily, if not exclusively, as individuals--as opposed to members of groups--promotes equality before the law. Citizens are people. All citizens fit into group, it is true, but not all citizens are members of all the same groups. If the government treats citizens as members of specific groups, it is more likely to use stereotypes--and not treat the members of particular groups equally. It will be more likely to have skewed dealings with members of group X without knowing that person's situation. "Oh, this person is an Irishman. He probably drinks a lot." In situations in which government emphasizes the groups one is in above the person one is, the level of justice will be diminished. If an Irishman is being tried for being in a bar fight in which he was not involved, it does not matter whether the Irish drink a lot. The case involves where that individual was, whether he was drinking, whether he had a part in the fight.

This does not mean that individuals' rights to associate will not be protected. It seems the rights to associate, when viewed as a part of individual rights will be more easily guarded. The question will not be "Should this specific religious group be allowed to stand on this specific street and chant their specific message?" When we talk about popular groups, we have certain responses, depending on whether we agree or disagree with the groups' messages, and perhaps wrongly whether we hold a grudge against a group based on their ethnic background, e.g. If we could avoid talking about groups when possible, it might promote the ability of jurors, judges, politicians, and others to see the situation with less bias. Pro-life people might support the loud protests right on the border of the property belonging to an abortion clinic because they support the protesters. However, if the situation is considered focusing on individuals, the situation might be cast as "Should an individual be able to stand on the border of a business' property, intruding by noise on the business' property?" This would promote a more fair review of the situation, and it comes from a proper view of citizens primarily as individuals.

Affirmative Action and Equality

Remember equality before the law? It applies to affirmative action. "Affirmative action refers to policies that take factors including "race, color, religion, sex or national origin"[1] into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination" (Wikipedia).

As I understand it, there are two kinds of affirmative action: affirmative action in government actions about government employees/admission to public educational institutions/etc. and affirmative action taken by private institutions, companies, etc. I want to consider both.

First, a point that needs to be made is that affirmative action is bias toward particular groups based on race, color, etc. (things we generally consider characteristics that should not be held *against* someone in the hiring process, even though many people are okay with 'valuing diversity' and giving the job to someone in an 'underrepresented group'). My point is that equality before the laws implies equality NOW. Although those underrepresented may be disadvantaged compared to their situation had their parents not been discriminated against, the inequality was not directly against them. Even if affirmative action for an individual who was directly discriminated against could be justified, giving an advantage based on race, religion, etc. cannot be neither politically justified for governments nor morally justified for private individuals (except for positions like Black Americans Group President or Methodist minister).

Second, one cannot give preference to one group of people without disadvantaging others. It seems nicer to talk about giving preference to the children of those who have been discriminated against in the past--and whose discrimination has adversely affected the children's situations (not all discrimination does this in every case)--than to disadvantage someone who has worked hard whose parents have not been historically discriminated against for being White, Protestant, or heterosexual, doesn't it? Yet, it is intuitive that giving preference to one group discriminates against another.

Government Affirmative Action

Some people think equality before the law meshes with affirmative action. The government is trying to bring about equality between the various social groups, right? However, I think some people who realize that preferring one social group disadvantages another would see that equality before the law cannot coincide with a purposeful disadvantaging of any social group, especially in the name of equality. Therefore, affirmative action is improper for a government of the people.

Private Affirmative Action

Affirmative action by private institutions and individual is something quite different. Private institutions are not institutions 'of the people'. We do not have the right to be equal before Hannaford, McDonald's, Steckle and Smith Law Firm, or Boston Medical Center (assuming these are privately run). They can choose whom they desire, valuing to the extent they wish or not valuing the social groups from which they applicants and employees hail. Whether it is morally right for private individuals to value 'diversity' or not is not my concern here. A company inflicts no harm on individuals by not hiring them, not giving them a 401k, or not giving them vacation time. If they don't want the job with the pay and benefits, they don't have to do it.

Racism as Idea

Let's assume I've made the idea that government should not dictate what people believe except if it harms or if the idea promotes (not merely increases the risk of) harm to others. The individual should be able to choose from the range of lifeviews available in his or her free society. The government should not coerce someone into various religious, social, or other views.

What about the idea of racism? It's bad, right? We'll take the racism of Whites against Blacks as an example. Racists are prejudiced against other people simply due to the color of their skin. That's unfair and wrong. Skin color has to do with how much melanin is in one's skin; the level of melanin in a person's skin is no basis for a judgment of their person or a reason to look with disfavor or hate on them.

Should the government criminalize racism? It depends. The government should criminalize racism of the type that leads to groups of White citizens hanging Blacks. However, there are other types of racism that do not meet the harm requirement. Some people see Blacks with disfavor because they are Black. This will affect their choices in employment, housing, and other areas. As citizens conducting their private lives with their own property, however, not giving someone something does not meet the harm principle. People are not (should not be) obligated to rent to, employ, or otherwise deal with anyone (excepting binding contracts and the like). People should be free to dislike, hate, ect. other people, as long as their views do not advocate inflicting harm on them.

So, am I saying the government should not take a stance on racism? No, absolutely not. Remember equality before the law. Government should be against all racism in all its actions, not favoring or penalizing based on skin color. However, the government should not criminalize its citizens racism and racist actions--as long as they do not inflict harm on others or have something that strongly encourages the inflicting of harm on others.

Morality is Not an Ultimate Justification for Legality

In a society which respects the right of citizens to think for themselves, moral claims cannot be the ultimate justification for outlawing certain actions. We begin to erode individual liberty of thought if we begin justifying laws based on our own moral structures. We still, however, need to make certain things illegal. Why should some acts be illegal?

In order to preserve the autonomy of individuals and the freedom to think for oneself, the government should embrace something like the harm principle. Mill and others have written about the harm principle. I understand it as saying that the only reason for the infringement of liberty is to prevent harm to others. This infringement takes place in the creating of laws and the punishment of those who break these laws.

If the government criminalizes anything but acts of positive harm, i.e., inflicting harm on others, (or perhaps believing things which promote the positive harm of others, e.g., believing that all race car drivers are evil and it is the responsibility of good people to assassinate them), it is showing disregard for equality because it limits the autonomy and freedom of thought among its citizens. This goes against equality before the law.

Equality Before the Law - Enlightenment and Autonomy of Thought

The idea that government should not interfere with its citizens holding certain ideas, except ideas which advocate or incite the violation of others' rights, can be recognized from an Enlightenment-valuing perspective.

The Enlightenment, as I understand it, had as its central tenet that it is up to individuals to decide what to believe. The king does not have the right to tell his people what to believe, nor is truth determined by what he says. Neither can priests and religious institutions. "Enlightenment is man's emergence from his self-incurred immaturity. Immaturity is the inability to use one's own understanding without the guidance of another" (Kant, What is Enlightenment?). One must decide for oneself what one believes because one is responsible for one's beliefs.

What we have lost to a large degree in America is our respect for individual responsibility for one's ideas (both that it is X's place to determine what he believes and it is X's fault if he chooses to embrace false ideas). As long as ideas are not advocating or inciting harm of others, neither the law nor the government should exert influence on which political/religious/social beliefs people hold.

With this in mind, those who appreciate Enlightenment ideals should agree that the government should neither condone nor outlaw ideas for its citizens. The government should stay as far away from prescribing a set of beliefs for its citizens as possible.

Equality Before the Law - Christianity and Religion

This idea of equality before the law applies to people's ideas themselves, in the sense that the law ideally does not make religious decisions (i.e. which ones are good, which ones are bad)--except for those which call or incite violence or other harmful actions. (Harmful actions are violations of legitimate rights.)

Those coming from a Christian perspective ought to agree with this because of the basics of Christianity. Christianity focuses on the relation between our ideas, beliefs, etc. and God, primarily. We believe (truly, not just a profession) and are saved. We merely profess to believe or believe something importantly different from the Truth and are not saved.

Under a right Christian perspective, ideas and beliefs are primarily between God and man. Christianity's emphasis on true belief, and not mere profession, should persuade Christians (1) that we should oppose a government's promoting Christian beliefs and ideas because that would encourage hypocrisy and (2) that we should certainly oppose a government which represses Christian beliefs because that would scare people away from Truth and make our job of telling others about Christianity much more difficult.

I think this should apply to all ideas. The government should not interfere, except to keep citizens from infringing on others' rights to gather information about ideas and decide for themselves.

Humans' Equality Before the Law

What is equality before the law?

'Before the law' must be taken seriously. This principle is focused on the laws' equal treatment of the nation's (state's, community's, etc.) people. The law cannot justly favor rich people over poor people. The government's treating its citizens equally does not mean it should enforce equality of circumstances; that would be doomed to fail. One's equality is not one's being equal. All humans were created equal--but they are not the same.

It is natural and right for a government to attempt to procure the maximum amount of equality among its citizens. Rights emanate (at least) from the equality of constitution. No individual is naturally justified in harming his fellow human. No individual is naturally more deserving of being harmed by fellow humans. The government has a right to protect its citizens from those who seek to harm or actually do harm fellow citizens.

The matter is different when considering equality before the law regarding ideas. Our equality of constitution does mean we are not to infringe on others' bodies (and property), but our equality also means we are all seekers of truth. We have our own minds as well as our own bodies, and it is proper that we are allowed to think what we will as long as we do not infringe on others' bodies or minds.

Since people under a government are in a social context and because we are influenced by the ideas around us, infringing on another's mind would have to be intense in order to justify action by the government; it would have to be something along the lines of one's forcing another to believe certain things (e.g., hooking another's brain up to a brain programmer). Otherwise, the government's curtailing of liberty to think certain thoughts due to the effect on others' brains is curtailing the liberty to think of the one 'causing the problem' in the first place.

Much value can be seen in 'equality before the law'. If equality before the law were a fundamental principle of the government in the United States, we would be much better off.

The Intolerance of Tolerance, Don Carson

"I have to disagree with [an idea] before I can use the word 'tolerate'."

Deterrence

When people debate what type of sentences should be given to criminals in the United States, it seems many in criminology suggest that 'harsh' sentences do not deter. Sentences which might be regarded as retributive or used for deterrence are said to be ineffective at what we should really be seeking, which is deterrence and/or 'rehabilitation'. They say that criminals are generally not so calculating as to consider the possible punishment for their actions. A crime which will receive two years in jail will not be avoided more than if the same crime will receive twenty years in jail. Criminals commit crime, largely disregarding the potential sentence(s) against them.

People who talk like this seem to be limiting their thought to the slice of humans who are criminals now. Those arguing for lesser or less-costly sentences (e.g., community service instead of jail time)--which also tend to be less scary--assume that those who are calculating are not committing that many crimes. This suggests that the 'harsh' sentences in place in the US are deterring, quite effectively, one significant part of the population--those who calculate. If lesser sentences were imposed, it would seem that we would still not deter many non-calculating individuals, but we would deter fewer calculating people who, e.g., would be willing to clean a highway if caught speeding but who would not risk being sent to jail for speeding.

Policy decisions about sentencing and deterrence need to take into consideration new groups of people who will commit crime under new practices.

Tolerance

Tolerance is one of the most-prized social virtues in America today. What is it? Is it accepting other's views, giving assent that their beliefs are right for them? Or is it being accepting of others with views different than one's own?

I think it is closer to the latter. Toleration in the former sense leans towards complete subjectivism and cannot include tolerance for objectivism (Stetson and Conti, 'The Truth about Tolerance'). Since tolerance cannot be acceptance of all views as correct (due to the contradiction presented above), it seems toleration must be about our relation to people, rather than ideas.

Tolerance, well-understood, is a term for a political and social stance and activity emanating from that stance. It is a term that is seen in one's actions, not in one's beliefs about a contended issue, e.g., gay marriage, ultimate truth, religion, etc. Those who positively believe that God exists can be tolerant of those who positively believe that no God exists, and vice versa. Each can deeply believe contradictory things, and still be tolerant of the other. This is not done by keeping one's beliefs to oneself or by acknowledging that one might be wrong in one's beliefs, but it is done by not harming those who hold beliefs opposed to one's own beliefs.