WEBVTT 00:00.740 --> 00:05.390 PROFESSOR: So what I want to do in today's lecture is to 00:05.390 --> 00:10.400 move us on to a topic not unrelated to the one that we 00:10.400 --> 00:13.750 were addressing before March break. 00:13.750 --> 00:17.530 So as you recall, what we were thinking about before March 00:17.530 --> 00:23.100 break were the relations that people bear to one another as 00:23.100 --> 00:26.080 far as moral responsibility goes. 00:26.080 --> 00:29.130 You might think the first part of the course, the part on 00:29.130 --> 00:33.080 flourishing, was about human beings as individuals and the 00:33.080 --> 00:36.450 ways in which, within themselves, they might achieve 00:36.450 --> 00:38.190 a certain kind of harmony. 00:38.190 --> 00:41.670 The second part of the course was about morality, about 00:41.670 --> 00:44.930 interpersonal relations between individuals. 00:44.930 --> 00:47.910 And the third part of the course, which we'll move to in 00:47.910 --> 00:52.460 earnest next week, is about how political structures might 00:52.460 --> 00:56.870 play a role in cultivating certain kinds of behavior on 00:56.870 --> 00:58.510 the part of individuals. 00:58.510 --> 01:00.480 Obviously, that's an idealization. 01:00.480 --> 01:03.980 Individuals considered in isolation are always in 01:03.980 --> 01:05.770 interaction with others. 01:05.770 --> 01:09.200 Individuals in pairwise relations are always embedded 01:09.200 --> 01:10.830 within larger communities. 01:10.830 --> 01:14.470 But the arc of the course has been to move from individuals, 01:14.470 --> 01:17.500 to small groups of individuals, to larger groups 01:17.500 --> 01:18.970 of individuals. 01:18.966 --> 01:24.706 And the punishment unit, which is just two lectures long, is 01:24.710 --> 01:28.440 in some ways a transitional unit between the morality 01:28.440 --> 01:31.960 section and the political philosophy section. 01:31.960 --> 01:36.590 So what I want to do in our running start, to get people 01:36.590 --> 01:38.980 back thinking about the questions that we've been 01:38.980 --> 01:41.310 thinking about, is to start with a 01:41.306 --> 01:42.656 couple of clicker questions. 01:42.660 --> 01:45.410 So I hope that your clickers didn't get 01:45.410 --> 01:48.400 lost over March break. 01:48.404 --> 01:53.094 And to begin by asking you to think about a couple of cases 01:53.090 --> 01:58.650 in real life, tragically, that have the structure that 01:58.650 --> 02:00.910 Trolley problems do. 02:00.910 --> 02:04.950 And then we'll move on to some cases more directly related to 02:04.949 --> 02:06.439 punishment. 02:06.440 --> 02:09.770 So you remember that we devoted a reasonable amount of 02:09.770 --> 02:14.870 class attention to thinking about an abstract and 02:14.870 --> 02:18.730 idealized moral dilemma situation, which is sometimes 02:18.730 --> 02:20.500 called the Trolley Bystander case. 02:20.500 --> 02:23.880 There's a trolley which is about to run into five people. 02:23.880 --> 02:26.940 There's a bystander next to it, who realizes that there's 02:26.940 --> 02:30.450 an alternative track on which only one person is standing. 02:30.450 --> 02:34.890 And that bystander faces the choice of whether to divert 02:34.890 --> 02:37.850 the threat, the trolley, from the track where there are the 02:37.850 --> 02:42.010 five to the track where there are the one. 02:42.010 --> 02:47.190 Tragically, the world has found itself with something 02:47.190 --> 02:56.400 like an actual trolley case, in the form of the effusion of 02:56.400 --> 03:02.340 radioactive clouds from the Japanese nuclear power plant. 03:02.340 --> 03:04.360 So suppose you were-- 03:04.360 --> 03:06.870 this is the first clicker question-- 03:06.870 --> 03:12.020 the Japanese Prime Minister, and it were evident that the 03:12.020 --> 03:16.420 radioactive cloud was heading towards Tokyo, with a 03:16.420 --> 03:21.200 population of roughly 13 million, and there was the 03:21.200 --> 03:27.470 possibility of diverting the cloud to the countryside, to 03:27.470 --> 03:32.720 an area with a population of roughly one million. 03:32.720 --> 03:37.850 Your clicker question is this: would it be, one, morally 03:37.850 --> 03:42.770 mandatory to redirect the plume from the 13 million to 03:42.770 --> 03:46.910 the 1 million, two, morally permitted but not morally 03:46.910 --> 03:49.700 mandatory, or three, morally prohibited? 03:55.600 --> 03:58.930 So let's see how the numbers come out. 03:58.930 --> 04:00.300 One second remaining. 04:00.300 --> 04:02.460 And let's see. 04:02.460 --> 04:07.270 So 31 percent of you think it would be morally mandatory to 04:07.270 --> 04:11.630 redirect, 56 percent think it would be morally permitted, 04:11.626 --> 04:16.486 and 13 percent think it would be morally prohibited. 04:16.490 --> 04:20.890 Now, let me show you how you thought about this question 04:20.890 --> 04:24.100 when we presented it abstractly, as a simple 04:24.100 --> 04:25.940 trolley problem. 04:25.940 --> 04:30.310 More than twice as many of you, looking at these numbers, 04:30.310 --> 04:35.700 31 percent, as opposed to 15 percent, think that it's 04:35.700 --> 04:39.400 morally mandatory in the actual case to 04:39.400 --> 04:41.830 redirect the plume. 04:41.832 --> 04:43.322 That's interesting. 04:43.315 --> 04:46.455 It's interesting methodologically, because it's 04:46.462 --> 04:49.862 interesting to ask why a real world case is giving you a 04:49.860 --> 04:53.860 different sort of response than a hypothetical case is. 04:53.860 --> 04:56.470 But it's also interesting methodologically to notice 04:56.470 --> 05:01.510 that on the prohibition, the numbers were almost identical. 05:01.510 --> 05:04.530 15 percent of you thought it was prohibited in the 05:04.530 --> 05:06.240 imaginary case. 05:06.240 --> 05:10.530 15 percent of you, actually 13 percent of you, thought it was 05:10.530 --> 05:12.800 prohibited in the actual case. 05:12.800 --> 05:16.550 So there's a way in which it appears that these imaginary 05:16.550 --> 05:22.020 cases are tracking, in their abstraction, the same sort of 05:22.020 --> 05:26.530 considerations that the actual cases are, and ways in which 05:26.530 --> 05:27.730 they aren't. 05:27.730 --> 05:30.480 And I encourage you, in the context of your sections and 05:30.480 --> 05:34.960 your conversations amongst yourselves, to think about why 05:34.960 --> 05:37.720 that might be. 05:37.720 --> 05:40.810 But in addition to being a straight trolley problem, the 05:40.810 --> 05:46.280 traditional Bystander case, in the case of the nuclear 05:46.280 --> 05:51.720 tragedy in Japan, there's also something not very different 05:51.720 --> 05:55.710 from what we might call the Harm's Way case. 05:55.710 --> 05:58.230 So you'll recall that the second kind of case that we 05:58.230 --> 06:01.000 thought about in the context of trolleys concerned a case 06:01.000 --> 06:04.270 where a trolley is hurtling down a track towards five 06:04.270 --> 06:09.830 individuals, and resting over the track is a person who, if 06:09.826 --> 06:15.546 you put him into harm's way, could prevent the death of the 06:15.550 --> 06:18.300 other five. 06:18.300 --> 06:21.560 How would that go in the actual 06:21.560 --> 06:24.660 situation that we now face? 06:24.660 --> 06:30.620 Same nuclear accident, same prime minister, same 13 06:30.620 --> 06:36.760 million people, but now, as the Prime Minister, you face 06:36.760 --> 06:42.350 the possibility of conscripting into certain 06:42.350 --> 06:50.730 death a small group of engineers, whose work on the 06:50.730 --> 06:55.650 plant in, for example, regaining electricity, or 06:55.650 --> 07:00.040 pouring water in places that would be inaccessible due to 07:00.040 --> 07:02.270 radioactivity to anybody whom you weren't 07:02.270 --> 07:03.870 sending to certain death. 07:03.870 --> 07:08.830 Individuals who are in a position to save the lives of 07:08.830 --> 07:14.180 these 13 million, through the sacrifice of an incredibly 07:14.180 --> 07:17.150 small number of individuals. 07:17.148 --> 07:22.128 The question is this: for the Prime Minister, supposing that 07:22.130 --> 07:27.290 the job involves conscripting workers to go, the plant is 07:27.290 --> 07:31.590 about to explode and bring with it an enormous amount of 07:31.590 --> 07:35.440 radiation to an enormous number of people, would it be 07:35.440 --> 07:39.440 morally mandatory, one, morally permitted but not 07:39.440 --> 07:44.100 morally mandatory, or morally prohibited to conscript the 07:44.100 --> 07:47.930 workers, sending them to certain death? 07:54.210 --> 07:57.270 So the numbers here are actually extremely 07:57.270 --> 08:00.930 interesting, when I show them to you in comparison with the 08:00.930 --> 08:02.220 abstract case. 08:02.215 --> 08:06.265 So your numbers here are 27 percent say it's prohibited, 08:06.270 --> 08:08.990 41 percent say it's permitted but not 08:08.990 --> 08:11.050 prohibited, whereas only-- 08:11.050 --> 08:15.570 sorry, 41 percent say it's permitted but not mandatory, 08:15.570 --> 08:20.280 and only 32 percent think it would be morally prohibited to 08:20.280 --> 08:23.660 conscript the workers in a way that would bring about their 08:23.660 --> 08:25.360 certain death. 08:25.360 --> 08:28.350 How did your numbers look in the fat man case? 08:28.350 --> 08:31.810 They looked very different indeed. 08:31.809 --> 08:34.649 Just to show you, here were your numbers 08:34.645 --> 08:36.715 in the actual case. 08:36.720 --> 08:40.220 Roughly 32 percent of you thought it was prohibited, 08:40.220 --> 08:44.480 more than twice as many thought it prohibited in the 08:44.480 --> 08:46.410 case of fat man. 08:46.410 --> 08:51.120 Now, is that because, as Josh Greene suggests, when a 08:51.120 --> 08:55.680 situation is up close and personal, the way you imagine 08:55.680 --> 08:59.630 engaging in the pushing action somehow plays a role, as 08:59.630 --> 09:03.330 either a legitimate or illegitimate moral heuristic, 09:03.330 --> 09:06.160 whereas in the case where you're imagining conscripting 09:06.160 --> 09:10.880 the workers, what you're doing is somehow more distant, in 09:10.880 --> 09:13.880 terms of the harm's way into which you're putting it? 09:13.884 --> 09:18.414 Is the difference that, in the case of the workers it feels 09:18.410 --> 09:20.890 more like a statistical harm? 09:20.890 --> 09:24.990 And as Cass Sunstein suggests, statistical harms are in some 09:24.990 --> 09:28.480 ways harder for us to process? 09:28.480 --> 09:32.980 Is what's going on in your different response to the 09:32.980 --> 09:38.370 Prime Minister case somehow that the numbers 13 million 09:38.370 --> 09:42.550 versus a small number change the calculus? 09:42.550 --> 09:45.120 But if they change the calculus, then it couldn't 09:45.120 --> 09:48.670 have been that any violable right was driving your 09:48.672 --> 09:50.892 response in fat man. 09:50.890 --> 09:56.740 So for those of you who are in the vast majority of having 09:56.740 --> 10:02.400 moved your position--note that mandatory went up, prohibited 10:02.400 --> 10:06.890 went down, permitted went up--I want you to think about 10:06.890 --> 10:11.530 what kind of moral reasoning explains the difference in 10:11.530 --> 10:16.280 your response to this actual Prime Minister case and the 10:16.280 --> 10:18.340 imaginary Fat Man case. 10:18.340 --> 10:21.450 And as always, these slides will be online for you by 10:21.450 --> 10:24.010 later today for you to have a chance to look 10:24.010 --> 10:27.590 closely at the numbers. 10:27.590 --> 10:31.480 So the cases that we've been considering so far, the cases 10:31.480 --> 10:35.420 where earthquakes bring about natural disasters that cause 10:35.420 --> 10:39.250 great harm to people, are tragedies. 10:39.250 --> 10:42.400 But they're tragedies with respect to which it's hard to 10:42.400 --> 10:46.870 know where to direct our dissatisfaction at the state 10:46.865 --> 10:48.545 of the world. 10:48.550 --> 10:52.760 There's very little that we can do to prevent things like 10:52.760 --> 10:54.820 earthquakes from happening. 10:54.820 --> 10:57.790 And although there are precautions that we can take 10:57.790 --> 11:02.860 with respect to things like nuclear power plants, again 11:02.860 --> 11:06.110 there are features of the world with which it's 11:06.110 --> 11:10.880 difficult for us to exert control. 11:10.880 --> 11:14.880 What we moved to in the lectures right before March 11:14.880 --> 11:18.750 break, in the context of moral luck, were instances where the 11:18.750 --> 11:23.790 wrong-doing that concerned us was perpetuated not by an 11:23.785 --> 11:28.865 impersonal agency, like an earthquake, but rather by an 11:28.870 --> 11:30.190 individual. 11:30.190 --> 11:35.240 And so we considered, for example, the four cases of the 11:35.240 --> 11:38.040 driver on their way home from work. 11:38.040 --> 11:42.840 Lucky Alert, who simply drove home, Unlucky Alert, who drove 11:42.840 --> 11:48.510 home alert and unfortunately hit a child, Lucky Cell Phone, 11:48.510 --> 11:54.240 who drove home as none of you ever do, I'm sure, talking on 11:54.240 --> 11:59.480 his cell phone, and Unlucky Cell Phone, who drove home 11:59.480 --> 12:02.930 talking on his cell phone and tragically hit a child. 12:02.925 --> 12:06.145 So I'm going to show you two of your numbers from before, 12:06.150 --> 12:09.690 and then ask you one more clicker question. 12:09.690 --> 12:14.730 Nearly all of you, 95 percent of you, thought that Lucky 12:14.730 --> 12:18.330 Alert did nothing morally blame-worthy in driving home. 12:18.330 --> 12:20.800 Remember, we stipulated that we weren't talking about the 12:20.800 --> 12:23.180 ways in which his carbon footprint might be 12:23.180 --> 12:27.890 contributing to various kinds of global problems. The issue 12:27.890 --> 12:30.180 was just whether he did something morally wrong in 12:30.180 --> 12:34.330 driving home, and 95 percent of you thought that he didn't. 12:34.330 --> 12:39.800 By contrast, 92 percent of you, nearly everyone in the 12:39.800 --> 12:44.290 class, thought that Unlucky Cell Phone, the one who was 12:44.290 --> 12:47.520 talking on his phone and hit the child, did something 12:47.520 --> 12:49.880 morally blame-worthy. 12:49.880 --> 12:52.200 The question that I want to ask you now, if you'll take 12:52.200 --> 12:56.420 out your clickers, is whether Unlucky Cell Phone, the person 12:56.420 --> 13:00.000 who was talking on his phone and hit the child, did 13:00.000 --> 13:03.370 something that merits punishment. 13:03.370 --> 13:06.810 And with that, we'll move into the central topic of our 13:06.810 --> 13:09.010 discussion today and Thursday. 13:09.010 --> 13:12.820 So did Unlucky Cell Phone do something that merits 13:12.820 --> 13:19.140 punishment in driving home and talking on his cell phone and, 13:19.140 --> 13:20.910 unfortunately, hitting the child? 13:20.910 --> 13:23.290 Let's see how our numbers come out. 13:23.290 --> 13:24.400 94 percent of you-- 13:24.400 --> 13:27.790 Wow, even more of you think he deserves punishment than think 13:27.790 --> 13:29.040 he did something wrong. 13:31.882 --> 13:34.172 Great class! 13:34.174 --> 13:40.004 [LAUGHTER] 13:40.000 --> 13:44.810 What I want to do in the next two classes is to think 13:44.810 --> 13:50.310 seriously with you about this rather perplexing 13:50.310 --> 13:54.550 philosophical and psychological phenomenon. 13:54.550 --> 14:00.920 The fact that when somebody does something wrong, and we 14:00.920 --> 14:04.280 perceive the person, or we perceive the perpetrator of 14:04.280 --> 14:08.420 the wrongdoing, as having had a certain sort of agency, 14:08.420 --> 14:14.360 there is, across cultures and across time, a tendency to 14:14.360 --> 14:20.150 think that that individual is deserving of punishment. 14:20.150 --> 14:23.120 So the questions that I want to ask in 14:23.120 --> 14:26.170 today's lecture are three. 14:26.170 --> 14:29.930 I want to start out by presenting you with a classic 14:29.930 --> 14:34.620 characterization of civil punishment, so that we have a 14:34.620 --> 14:37.490 sense of what it is that we're talking about, and in so 14:37.490 --> 14:40.710 doing, I'll present you with one that Pojman summarized in 14:40.710 --> 14:46.680 the outline reading that I had you do today, that comes from 14:46.680 --> 14:50.420 mid-1950's work in analytic legal theory. 14:50.420 --> 14:53.810 So I'm going to ask what it is that we mean, when we talk 14:53.810 --> 14:56.550 about civil or criminal punishment. 14:56.550 --> 15:00.520 I then want to turn to the central philosophical question 15:00.520 --> 15:05.690 about punishment, which is what sort of justification 15:05.690 --> 15:07.600 does punishment have? 15:07.600 --> 15:10.920 And you will discover, as you noticed already from the 15:10.920 --> 15:15.300 readings, that two of the dominant justifications that 15:15.300 --> 15:20.380 are offered for punishment actually echo two of the 15:20.380 --> 15:25.490 dominant justifications for moral constraint. 15:25.490 --> 15:30.140 That is, one can give roughly a utilitarian account of 15:30.135 --> 15:34.155 punishment, and one can give roughly a deontological 15:34.160 --> 15:35.720 account of punishment. 15:35.720 --> 15:39.840 And I want to try to get you within the mindset of each of 15:39.840 --> 15:43.750 those two conceptions of punishment, both in order to 15:43.750 --> 15:47.150 help you think about punishment in order to help 15:47.150 --> 15:51.510 you think about, more clearly, some of the issues in moral 15:51.510 --> 15:54.870 philosophy that we were talking about before break. 15:54.870 --> 15:59.760 And of course, I will not merely present those views, 15:59.760 --> 16:03.520 but will try to give you a sense of why one might think 16:03.520 --> 16:06.340 those are reasonable or unreasonable justifications of 16:06.340 --> 16:07.920 punishment. 16:07.920 --> 16:12.210 Next class, we're going to turn to some very interesting 16:12.210 --> 16:17.270 psychological literature that does, with respect to the 16:17.270 --> 16:20.660 deontological and utilitarian theories of punishment that 16:20.660 --> 16:23.820 we're looking at philosophically today, what 16:23.820 --> 16:26.990 some of the empirical moral literature did with respect to 16:26.990 --> 16:30.860 deontology and utilitarianism more generally. 16:30.860 --> 16:35.370 That is, it suggests the psychological substrate for 16:35.370 --> 16:40.480 our reactions, and in some cases tries to argue that that 16:40.480 --> 16:44.290 renders those reactions illegitimate. 16:44.290 --> 16:47.360 Or illegitimate as a basis for a certain kind 16:47.360 --> 16:49.830 of normative judgment. 16:49.830 --> 16:53.480 So again, I want to think about these both as questions 16:53.480 --> 16:59.110 about punishment, and as ways of thinking about the 16:59.113 --> 17:02.523 practical psychological critique of moral theory more 17:02.520 --> 17:05.220 generally, that we talked about last week. 17:05.220 --> 17:09.650 And finally, what I want to do next class is to think about 17:09.650 --> 17:12.380 the relation between punishment in the civil 17:12.380 --> 17:17.630 context and punishment in a much more personal context. 17:17.630 --> 17:19.710 You might have noticed that one of the things that we're 17:19.710 --> 17:23.510 going to be reading for Thursday is another chapter 17:23.510 --> 17:28.230 from I take to be the Aristotelian-inspired 17:28.230 --> 17:32.090 parenting guide of Alan Kazdin. 17:32.090 --> 17:36.590 So let me offer one caveat, which is the topic of 17:36.585 --> 17:37.505 punishment is enormous. 17:37.510 --> 17:39.210 We could offer an entire lecture 17:39.210 --> 17:41.530 course on this question. 17:41.530 --> 17:45.240 And what I'm presenting to you in the class is a pretty 17:45.240 --> 17:49.070 bread-and-butter Anglo-American picture of what 17:49.070 --> 17:51.080 punishment amounts to. 17:51.080 --> 17:53.770 Any of you who have thought about punishment in the 17:53.770 --> 17:58.780 context of social theory have encountered some of the 17:58.780 --> 18:02.670 sophisticated critiques of punishment that come to the 18:02.670 --> 18:05.500 Western twentieth-century philosophical tradition 18:05.500 --> 18:09.070 largely through the writing of Nietzsche and Foucault. 18:09.070 --> 18:13.620 And simply due to time constraints, not because these 18:13.620 --> 18:16.270 are uninteresting, indeed they are extraordinarily 18:16.270 --> 18:20.040 interesting, we won't be thinking about these writers 18:20.040 --> 18:21.780 in this class. 18:21.780 --> 18:25.020 Though, as always, I'm very happy during office hours or 18:25.020 --> 18:28.140 other times to talk to you about those. 18:28.140 --> 18:31.530 So let's start with the first of these questions. 18:31.530 --> 18:35.020 What do we mean by civil punishment? 18:35.020 --> 18:39.640 So when you clicked on your clicker and you said that 18:39.640 --> 18:43.710 Unlucky Cell Phone, the man who talking on his cell phone 18:43.710 --> 18:46.560 accidentally killed the child, when you said that Unlucky 18:46.560 --> 18:52.160 Cell Phone was someone who merited punishment, presumably 18:52.160 --> 18:56.790 you were thinking of something with roughly the five 18:56.790 --> 19:01.620 characteristics that are taken to be characteristics of 19:01.620 --> 19:05.570 paradigmatic instances of punishment, are perhaps even 19:05.570 --> 19:10.430 as necessary and sufficient conditions for what it is for 19:10.430 --> 19:13.240 something to be punishment. 19:13.242 --> 19:16.742 So the first thing, the first characteristic, the one 19:16.740 --> 19:19.780 perhaps most salient when we think about punishment, is 19:19.784 --> 19:23.044 that punishment is something that involves a certain kind 19:23.040 --> 19:26.830 of unpleasantness or suffering. 19:26.830 --> 19:31.480 In traditional culture, punishment involved either the 19:31.480 --> 19:35.700 infliction of some sort of physical pain, or the 19:35.700 --> 19:40.440 infliction of some sort of social isolation, or the 19:40.440 --> 19:44.240 infliction of some sort of public humiliation. 19:44.240 --> 19:49.640 All of these involved unpleasantness and suffering. 19:49.640 --> 19:53.730 In the amazing description of the three horses from Plato's 19:53.730 --> 19:58.360 Phaedrus that we read at the beginning of the semester, the 19:58.360 --> 20:04.160 charioteer, in his effort to direct the recalcitrant wild 20:04.160 --> 20:10.230 horse, pulls on the bit in a way that brings blood to the 20:10.230 --> 20:16.030 mouth of the horse in an effort to inflict punishment. 20:16.030 --> 20:20.480 So the core notion is that punishment involves 20:20.480 --> 20:23.800 unpleasantness and suffering. 20:23.800 --> 20:29.050 It involves bringing somebody into a state that brings 20:29.050 --> 20:31.980 disutility to them. 20:31.980 --> 20:36.650 As far as the felicific calculus goes, the calculus of 20:36.650 --> 20:40.510 felicity, the enumeration of the amount of happiness in the 20:40.510 --> 20:46.220 world, punishment reduces in that individual the amount of 20:46.220 --> 20:49.540 happiness that they have. 20:49.536 --> 20:51.636 Second characteristic. 20:51.636 --> 20:55.436 Punishment is not merely the infliction of pain or 20:55.440 --> 20:57.190 suffering on an individual. 20:57.190 --> 21:01.000 It's the infliction of pain or suffering on an individual in 21:01.000 --> 21:04.470 response to a particular offense. 21:04.470 --> 21:08.210 Either a legal offense, in the case of legal punishment. 21:08.210 --> 21:11.120 Or if you think that punishment is also something 21:11.120 --> 21:15.720 that can be carried out with regard to moral trespasses, in 21:15.720 --> 21:18.010 response to a moral offense. 21:18.006 --> 21:20.956 So it's not just a bringing about of pain 21:20.960 --> 21:22.270 randomly in the world. 21:22.270 --> 21:25.410 It's a bringing about of pain in the world in response to a 21:25.410 --> 21:27.130 legal offense. 21:27.130 --> 21:32.440 To the person who committed the offense. 21:32.440 --> 21:36.520 So, it's not merely that if something bad happens in a 21:36.520 --> 21:41.560 location: you find an individual and visit 21:41.560 --> 21:43.810 suffering upon them. 21:43.810 --> 21:49.320 The individual on whom suffering is visited is 21:49.320 --> 21:54.960 supposed to be the one who has been judged, by whatever 21:54.960 --> 21:57.730 procedures are considered the legitimate procedures for 21:57.730 --> 22:02.940 making such judgments, to have been an offender. 22:02.940 --> 22:05.980 Moreover, the punishment needs to be intentionally 22:05.980 --> 22:09.510 administered by a human agent. 22:09.510 --> 22:14.600 It's not enough if natural forces somehow bring about the 22:14.600 --> 22:15.870 bad consequences. 22:15.870 --> 22:20.290 And we'll talk about that, with respect to a puzzle, in 22:20.290 --> 22:24.430 the case of retributive punishment, in a moment. 22:24.430 --> 22:29.600 And finally, it's imposed and administered not by an 22:29.600 --> 22:34.640 individual acting on his or her own, or even by a posse of 22:34.640 --> 22:38.710 individuals, who have taken the law into their hands, but 22:38.710 --> 22:45.110 rather by a legal authority that has the sanction of the 22:45.110 --> 22:50.130 state or civil institution behind it. 22:50.130 --> 22:54.960 So the question that punishment raises, and we'll 22:54.960 --> 22:58.330 think about this again when we start thinking about political 22:58.330 --> 23:04.750 theory more generally, is how is it that a state could ever 23:04.750 --> 23:12.040 be justified in bringing harm to one of its members. 23:12.040 --> 23:19.650 How could it be legitimate for a society to cause one of its 23:19.650 --> 23:26.520 individuals to experience unpleasantness or suffering? 23:26.520 --> 23:32.730 So there are two basic kinds of justification that are 23:32.730 --> 23:36.710 offered for punishment. 23:36.708 --> 23:41.818 The first is a forward-looking justification. 23:41.820 --> 23:49.520 It's one that says punishment is an effective mechanism for 23:49.520 --> 23:53.060 avoiding future harm. 23:53.060 --> 23:58.600 When somebody acts in a way that violates either legal or 23:58.600 --> 24:04.750 social norm, that individual indicates, perhaps, a 24:04.750 --> 24:09.100 likelihood of acting in that way again. 24:09.100 --> 24:13.870 And so disabling them is important. 24:13.870 --> 24:18.070 Or, when an individual acts in a way that violates legal or 24:18.070 --> 24:23.040 social norms, and others see that the individual has acted 24:23.041 --> 24:27.151 in that way, and received no negative consequences from the 24:27.150 --> 24:30.300 community as a result, others will be likely 24:30.300 --> 24:31.810 to act in that way. 24:31.810 --> 24:37.770 And so punishment serves a public deterrent function. 24:37.770 --> 24:40.520 Regardless of how it's operationalized, and we'll 24:40.520 --> 24:44.170 talk a bit more about that at the end of the lecture, the 24:44.165 --> 24:47.625 basic motivation for the forward-looking justification 24:47.630 --> 24:51.280 of punishment is that punishment is an effective 24:51.280 --> 24:54.560 means of avoiding future harm. 24:54.560 --> 24:58.460 So that in some way, the suffering of the individual 24:58.460 --> 25:04.520 who is punished on behalf of the state is offset by the 25:04.520 --> 25:10.240 benefits to other individuals that will result as a 25:10.240 --> 25:13.490 consequence of having caused suffering in one place. 25:13.490 --> 25:18.500 It's a trade-off of disutility and utility. 25:18.496 --> 25:23.256 The second sort of justification of punishment, 25:23.260 --> 25:28.280 and let me say, those of you who felt unsatisfied by number 25:28.280 --> 25:34.630 one but frustrated by Kant in our moral theory discussion 25:34.630 --> 25:38.560 before March break, have some thinking to do about how your 25:38.560 --> 25:40.580 worldviews fit together. 25:40.576 --> 25:46.036 The second justification of punishment is that punishment 25:46.040 --> 25:52.170 is called for, because when somebody violates moral or 25:52.170 --> 25:59.400 legal codes, they deserve to be penalized. 25:59.400 --> 26:03.970 The justification is not that it's a way of avoiding future 26:03.970 --> 26:07.800 harm, though it might happen to bring that, as a nice added 26:07.800 --> 26:08.810 of benefit. 26:08.810 --> 26:13.460 The reason an individual is to be punished on this picture is 26:13.460 --> 26:18.500 because in committing a moral or legal violation, the person 26:18.500 --> 26:22.300 has violated the moral or legal code in such a way that 26:22.300 --> 26:29.290 what he or she deserves is to be punished. 26:29.290 --> 26:31.680 So those are the two justifications that we're 26:31.680 --> 26:33.700 going to think about. 26:33.700 --> 26:37.090 But I want to point out that there's another way of 26:37.090 --> 26:41.370 thinking about punishment that we'll talk about a little bit 26:41.370 --> 26:46.470 more in the context of the lecture, which is, you might 26:46.470 --> 26:52.390 think about punishment as being a response to a 26:52.390 --> 26:57.860 disruption of the social order, in such a way that at 26:57.860 --> 26:59.900 least two individuals are involved. 26:59.900 --> 27:05.100 One, the victim, with respect to whom, if you want to 27:05.096 --> 27:09.226 restore the pre-harm state, the important thing to think 27:09.230 --> 27:12.700 about in the context of punishment is neither the 27:12.700 --> 27:15.480 large question about retribution nor the large 27:15.480 --> 27:18.510 question about deterrence, though those are important to 27:18.510 --> 27:21.710 the individual as a member of society, but rather in the 27:21.710 --> 27:25.850 case of this specific crime, what one wants to think about 27:25.850 --> 27:26.860 is restitution. 27:26.860 --> 27:30.660 What can be done to restore the individual to 27:30.660 --> 27:33.340 her pre-harm state? 27:33.342 --> 27:38.782 And, in the case of the offender, one might think 27:38.780 --> 27:43.620 about what can be done to restore that individual to 27:43.620 --> 27:47.740 what one might think of as a larger, more global pre-harm 27:47.740 --> 27:55.370 state, namely towards a situation of pro-sociality. 27:55.370 --> 27:57.900 So let's illustrate these four ideas with 27:57.900 --> 27:59.840 a particular example. 27:59.836 --> 28:04.786 Here's our old friend Gyges, remember him, back in January? 28:04.794 --> 28:08.414 There he was, and for now, we've given him a horse. 28:08.405 --> 28:14.725 So Gyges has a horse, and up shows Pedro, he's our bad guy 28:14.730 --> 28:18.260 from Jim and the Indians, and Pedro goes and 28:18.264 --> 28:23.534 steals Gyges' horse. 28:23.530 --> 28:28.600 Now, what is to be done? 28:28.600 --> 28:33.470 Well, if the question that interests us is that of 28:33.470 --> 28:38.010 restoring the situation to its pre-harm state, then our 28:38.010 --> 28:41.750 primary concern is with restitution. 28:41.750 --> 28:46.840 We want Pedro to give Gyges back his horse. 28:46.840 --> 28:51.140 Suppose that instead of stealing Gyges' horse, Pedro 28:51.140 --> 28:55.480 had murdered Gyges' horse? 28:55.476 --> 28:59.506 We might think then that what restitution requires is 28:59.510 --> 29:02.520 presenting Pedro with something as good as the horse 29:02.515 --> 29:03.595 he previously had. 29:03.600 --> 29:08.370 Perhaps Pedro needs to give dot Gyges one of his horses. 29:08.370 --> 29:12.470 But the picture that lies behind restitution, and we'll 29:12.470 --> 29:15.990 talk about the ways in which restitution is problematic, 29:15.990 --> 29:20.020 when restoring to the pre-harm state involves something a 29:20.020 --> 29:24.390 little more complicated than giving back stolen property or 29:24.390 --> 29:26.540 replacing in kind. 29:26.540 --> 29:31.490 The notion behind restitution is that the goal in which the 29:31.490 --> 29:36.560 state has legitimate reason to be engaged, is that of taking 29:36.560 --> 29:41.180 the innocent party and making sure that they are no worse 29:41.180 --> 29:45.110 off after having suffered a crime than 29:45.110 --> 29:48.250 before having suffered. 29:48.250 --> 29:52.790 What does the notion of rehabilitation tell us to do 29:52.790 --> 29:54.070 in this state? 29:54.070 --> 29:58.680 Well, presumably it tells us to think about how-- there's 29:58.680 --> 30:01.390 Pedro with a shepherd's staff-- 30:01.390 --> 30:07.080 how can we help make somebody, whose interactions with 30:07.080 --> 30:12.870 society involve violations of its norms, such that he or she 30:12.870 --> 30:17.640 comes to internalize those norms in a way that they 30:17.640 --> 30:22.570 become the grounding for his or her behavior? 30:22.570 --> 30:29.620 In some ways, rehabilitation is the most effective means of 30:29.620 --> 30:32.480 deterrence and prevention. 30:32.480 --> 30:36.890 If it's possible to reinstate pro-sociality in parts of the 30:36.890 --> 30:40.860 individuals towards whom we are expressing concern through 30:40.860 --> 30:47.220 punishment, wouldn't that be the most effective means? 30:47.220 --> 30:50.750 So that's one version of thinking about 30:50.750 --> 30:51.650 what's going on. 30:51.650 --> 30:56.560 We might think about restitution for the harmed and 30:56.560 --> 30:59.840 rehabilitation for the harmer. 30:59.840 --> 31:03.070 Alternatively, we might think about the question in terms of 31:03.070 --> 31:05.310 the two categories that we're going to focus on for the 31:05.310 --> 31:06.900 remainder of lecture. 31:06.900 --> 31:12.640 That is, we might lock up Pedro and do so with the 31:12.640 --> 31:15.390 justification that that will prevent him from 31:15.390 --> 31:17.620 doing future crime. 31:17.622 --> 31:22.712 Or we might lock up Pedro with the thought-- watch the slide, 31:22.710 --> 31:26.630 it's the only joke all lecture-- that in so doing, 31:26.630 --> 31:31.020 what we provide is justice. 31:31.020 --> 31:34.930 There's one more visual joke later in lecture about the 31:34.930 --> 31:39.660 ways in which it is part of our pop culture, part of 31:39.660 --> 31:43.460 cartoons, part of comic books, part of movies, that somehow 31:43.460 --> 31:48.700 the visiting of justice upon an offender is absolutely 31:48.700 --> 31:52.370 critical to society's well-being. 31:52.370 --> 31:56.360 So what I want to do is introduce you now, from the 31:56.360 --> 32:00.600 inside, from the work of Kant, on the one hand, and then more 32:00.600 --> 32:02.590 generally, and then through the work of Rawls on the 32:02.590 --> 32:05.690 other, to these two sorts of justifications. 32:05.690 --> 32:08.570 So let's start with the retributivist outlook. 32:08.570 --> 32:12.480 That's the outlook, roughly, that when somebody does 32:12.480 --> 32:16.300 something that violates legal or moral norms, they've 32:16.300 --> 32:20.620 committed a wrong, and in so doing they've put the scales 32:20.620 --> 32:25.080 of justice somehow out of line. 32:25.080 --> 32:31.720 And that what punishment does is it reorients the scales of 32:31.720 --> 32:33.830 justice, it re-balances things. 32:36.660 --> 32:42.140 In punishing the harm-doer, we reorient the world in such a 32:42.140 --> 32:49.900 way that injustice becomes re-weighted, that desert is 32:49.900 --> 32:53.540 visited upon the harm-doer. 32:53.540 --> 32:57.130 So the text we read in discussing the retributivist 32:57.130 --> 33:00.440 outlook was that of Immanuel Kant. 33:00.440 --> 33:05.000 And Kant writes explicitly "juridical punishment can 33:05.000 --> 33:09.130 never be administered merely as a means for promoting 33:09.130 --> 33:13.470 another good, either with regard to the criminal himself 33:13.470 --> 33:18.840 or the civil society." That is, deterrence, prevention of 33:18.840 --> 33:23.490 future harm, rehabilitation, all of -- 33:23.490 --> 33:25.640 those are other goods-- 33:25.640 --> 33:30.710 may well come along in the wake of punishment. 33:30.710 --> 33:35.910 But that cannot be the justification for the action. 33:35.910 --> 33:40.200 "Judicial punishment," says Kant, "can be imposed only 33:40.200 --> 33:45.020 because the individual on whom it is inflicted has committed 33:45.020 --> 33:50.320 a crime." This is of a piece with Kant's 33:50.320 --> 33:52.660 more general outlook. 33:52.660 --> 33:59.510 You recall from the opening pages of the Groundwork that 33:59.510 --> 34:05.260 Kant isn't interested in thinking about consequences. 34:05.260 --> 34:11.700 Kant is interested in thinking about moral rightness, and the 34:11.699 --> 34:17.679 way in which our behaviors and our social institutions can 34:17.679 --> 34:21.169 reflect our recognition of this fundamental 34:21.170 --> 34:23.220 fact about the world. 34:23.219 --> 34:27.739 So those of you who are drawn to the picture that criminals 34:27.739 --> 34:33.139 deserve their deserts, not for utilitarian reasons but for 34:33.139 --> 34:36.649 fundamental ones, need to think about whether that 34:36.650 --> 34:41.470 brings in its wake for you a commitment to something like 34:41.469 --> 34:45.079 the more general Kantian outlook, whereby a good will 34:45.080 --> 34:50.800 is good not because of what it affects or accomplishes, but 34:50.800 --> 34:55.110 rather good in itself. 34:55.110 --> 34:59.300 That's the core of the retributivist outlook. 34:59.302 --> 35:02.822 The retributivist outlook often brings with it-- 35:02.820 --> 35:05.420 in addition to an answer to the question, what's the 35:05.420 --> 35:07.750 justification for punishment? 35:07.750 --> 35:12.790 Answer, moral desert--an account of what Kant, in the 35:12.790 --> 35:15.800 writings that we read for today, calls the "principle 35:15.800 --> 35:19.290 and standards of public justice." That is, 35:19.290 --> 35:23.830 retributivism includes not merely the idea that criminals 35:23.830 --> 35:30.060 deserve penalty, but also a picture of what grounds that 35:30.060 --> 35:33.950 penalty, and sometimes a characterization of what those 35:33.950 --> 35:36.140 specific penalties amount to. 35:36.140 --> 35:41.060 So Kant writes, "the undeserved evil which anyone 35:41.060 --> 35:47.610 commits to another is to be one regarded as perpetrated on 35:47.610 --> 35:54.340 himself." That is, a principled justification for 35:54.340 --> 35:59.820 punishment in kind to the harm one has committed underlies 35:59.820 --> 36:00.790 Kant's picture. 36:00.790 --> 36:05.140 So, he continues, "whoever steals makes 36:05.140 --> 36:07.910 all property insecure. 36:07.910 --> 36:12.400 He therefore robs himself of security in property, 36:12.400 --> 36:16.910 according to the right of retaliation." The punishment 36:16.910 --> 36:24.170 for theft is loss of property, says Kant, on the principle 36:24.170 --> 36:27.710 that the undeserved evil which anyone commits on another is 36:27.710 --> 36:31.320 to be regarded as perpetrated on himself. 36:31.320 --> 36:35.480 The logic of that argument, of course, brings with it the 36:35.480 --> 36:40.440 conclusion that Pojman helpfully italicizes in Kant 36:40.440 --> 36:47.350 for us, "whoever has committed murder must die." I'm not sure 36:47.350 --> 36:50.050 the italics are in the original German, but they do 36:50.050 --> 36:52.680 serve to make the text effective, for those of you 36:52.680 --> 36:55.840 coming back from March break and looking for a wake-up call 36:55.840 --> 36:57.800 in doing your reading. 36:57.800 --> 37:02.720 So the picture that retaliation of the sort that 37:02.720 --> 37:07.960 is demanded by moral desert, that retribution for harm 37:07.960 --> 37:11.190 brings with it the mandate that a similar harm be 37:11.190 --> 37:15.910 perpetrated on you has, in Kant's articulation, a 37:15.910 --> 37:18.680 particular form. 37:18.680 --> 37:23.580 The thought that death should be visited upon one who 37:23.580 --> 37:30.800 commits a crime of killing has struck many as a way of 37:30.800 --> 37:35.050 expressing not retribution, but revenge. 37:35.050 --> 37:40.490 And I want to present you with a very nice analysis, that was 37:40.490 --> 37:44.360 adverted to in one of your readings, that Robert Nozick, 37:44.360 --> 37:46.930 whom we'll be reading more from later and 37:46.930 --> 37:48.590 read some from before. 37:48.590 --> 37:53.100 A nice analysis that he offers of the difference between 37:53.100 --> 37:56.050 retribution, on the one hand, and revenge, on the other. 37:56.050 --> 37:58.900 Because I want to try to give you a really clean picture of 37:58.900 --> 38:02.490 what the retributionist picture amounts to. 38:02.490 --> 38:05.790 So one axis along which you might contrast retribution and 38:05.790 --> 38:09.080 revenge is what it is that triggers a desire for 38:09.080 --> 38:09.870 retribution. 38:09.870 --> 38:14.720 And Nozick says retribution is triggered by a legal or moral 38:14.720 --> 38:20.230 wrong, a violation of a code that is accepted by all 38:20.230 --> 38:23.380 parties, though it may have been violated by one of them, 38:23.380 --> 38:28.330 whereas revenge might occur in response to a harm or a 38:28.330 --> 38:33.920 slight, not a violation of the moral code, as such. 38:33.920 --> 38:37.020 There are, says Nozick, limits to retribution. 38:37.020 --> 38:40.030 Kant has just articulated one version of that. 38:40.030 --> 38:43.500 We penalize exactly in proportion to the harm done, 38:43.500 --> 38:45.030 on Kant's picture. 38:45.030 --> 38:50.500 By contract, revenge is, in principle, unlimited. 38:50.500 --> 38:54.250 In terms of the personality involved, the degree of 38:54.250 --> 38:58.630 personalization, retribution is impersonal, it's carried 38:58.630 --> 39:00.140 out by the state. 39:00.140 --> 39:02.480 Remember, that was one of our characterizations, one of the 39:02.480 --> 39:03.770 elements of our characterization of 39:03.770 --> 39:04.790 punishment. 39:04.790 --> 39:07.290 Whereas revenge is personal. 39:07.290 --> 39:11.960 It's carried out by an individual for the sake of 39:11.960 --> 39:15.760 expressing that individual's dissatisfaction. 39:15.760 --> 39:19.510 Retribution differs from revenge in emotional tone. 39:19.510 --> 39:22.800 When one engages in retribution, one either takes 39:22.800 --> 39:29.090 pleasure in justice itself, or has no emotional feeling. 39:29.090 --> 39:32.460 When you put a criminal in jail, the pleasure is in 39:32.460 --> 39:37.970 having done the right thing, as far as justice demands, not 39:37.970 --> 39:43.500 the pleasure in seeing the suffering of another. 39:43.500 --> 39:47.460 There's a kind of generality that attaches to retribution. 39:47.460 --> 39:50.850 An individual who performs a particular kind of act in a 39:50.850 --> 39:52.940 particular kind of circumstance, whoever they 39:52.940 --> 39:56.530 are, is going to be worthy of retribution. 39:56.530 --> 39:59.920 Whereas in the case of revenge, it's about a specific 39:59.920 --> 40:03.290 person at a specific time, not as an instance of a category, 40:03.290 --> 40:07.500 but as a particular wrongdoer in eyes of 40:07.500 --> 40:09.540 the one taking vengeance. 40:09.540 --> 40:13.420 There is a way in which retribution and revenge are 40:13.420 --> 40:19.070 similar, and that is that both of them are expressive acts. 40:19.066 --> 40:23.906 In the case of both of them, the target is supposed to know 40:23.910 --> 40:28.420 why the penalty is being inflicted, and to know that he 40:28.420 --> 40:32.050 is intended to know that. 40:32.050 --> 40:35.250 So again, these slides will be up, if you didn't get down all 40:35.250 --> 40:35.820 the details. 40:35.815 --> 40:39.655 But the picture of retribution that we're interested in is 40:39.660 --> 40:42.450 the one on the left. 40:42.450 --> 40:46.360 So, I want to talk about two cases where this knowledge 40:46.360 --> 40:52.510 condition gives rise to potentially amusing or 40:52.510 --> 40:54.310 perplexing situations. 40:54.310 --> 40:57.420 One, in the case of revenge, and the other in the case of 40:57.420 --> 40:58.260 retribution. 40:58.260 --> 41:04.280 So it is, as you know, a trope in comic books that the 41:04.280 --> 41:08.680 villain is always trying to kill the hero in such a way 41:08.680 --> 41:12.290 that the hero knows why the villain is trying to do that. 41:12.290 --> 41:15.770 And those of you familiar with Austin Powers know that Austin 41:15.770 --> 41:19.780 Powers is always able to escape Dr. Evil, because Dr. 41:19.780 --> 41:22.660 Evil is so concerned with what we might think about the 41:22.660 --> 41:28.690 publicity constraint or the expressive role of revenge. 41:28.690 --> 41:34.170 But in addition to creating plot lines in parody movies, 41:34.170 --> 41:38.670 the phenomenon that retribution involves a 41:38.670 --> 41:44.650 particular kind of bringing about of harm gives rise to a 41:44.650 --> 41:47.400 perplexing phenomenon, that we might call "justice as the 41:47.400 --> 41:49.180 world ends." 41:49.180 --> 41:52.120 So Nozick writes, "the conditions demarcating 41:52.120 --> 41:56.230 retribution explain what otherwise appears to be a 41:56.230 --> 41:57.510 ludicrous phenomenon. 41:57.510 --> 42:02.130 If someone sentenced to death falls perilously ill or 42:02.130 --> 42:07.610 attempts suicide, execution is postponed and measures are 42:07.610 --> 42:11.840 taken to bring the condemned person back to health, so that 42:11.840 --> 42:13.050 he can then be executed. 42:13.050 --> 42:18.680 This is because his punishment is to involve something being 42:18.680 --> 42:23.180 visited upon him by others because of the 42:23.180 --> 42:25.600 wrongness of his act. 42:25.600 --> 42:29.950 His death by natural causes or by his own hand would avoid 42:29.950 --> 42:35.530 this so measures are taken to restore him for punishment." 42:35.530 --> 42:41.670 Notice the way in which this parallels the discussion of 42:41.670 --> 42:46.280 the drowning child case in the work of Mill's Utilitarianism, 42:46.280 --> 42:51.170 on the one hand, Kant's Groundwork, on the other. 42:51.170 --> 42:57.640 Mill is just interested in the child getting out of the pond, 42:57.640 --> 43:02.310 and isn't, in that passage, interested in whether you do 43:02.310 --> 43:05.120 it because you're showing off for somebody that you want to 43:05.120 --> 43:08.140 impress on the shoreline, or trying to get a financial 43:08.140 --> 43:11.300 reward, or expressing a certain kind of moral 43:11.300 --> 43:12.780 commitment. 43:12.780 --> 43:19.100 Kant is interested in why you are doing it. 43:19.100 --> 43:21.360 So too here. 43:21.360 --> 43:27.360 The retributivist picture says what matters is not that the 43:27.360 --> 43:32.860 criminal end up dead, at the end of things, in some way. 43:32.860 --> 43:35.870 What matter is that the criminal end up dead or 43:35.870 --> 43:38.010 punished in the right kind of way, at the end of things, 43:38.010 --> 43:42.150 because of a particular process. 43:42.150 --> 43:44.750 So we'll close today's lecture and continue with 43:44.750 --> 43:49.870 utilitarianism next class with the otherwise perplexing quote 43:49.870 --> 43:52.830 from the end of Kant, which you are now in a position to 43:52.830 --> 43:54.350 understand. 43:54.346 --> 43:58.296 Kant writes, if it's 2012, and the world is ending, in the 43:58.300 --> 44:00.860 way that it does in that movie, and the waves are 44:00.860 --> 44:03.850 coming in and the lightning is striking, and the new Ice Age 44:03.850 --> 44:06.960 is emerging, the first thing you have to do before the 44:06.960 --> 44:08.950 world ends, says Kant, is execute 44:08.950 --> 44:11.100 everybody on death row. 44:11.100 --> 44:14.960 "Even if civil society resolves to dissolve itself, 44:14.960 --> 44:18.860 the last murderer lying in prison," says Kant, "ought to 44:18.860 --> 44:20.670 be executed before it does. 44:20.670 --> 44:24.590 This ought to be done."--this is the retributivist picture-- 44:24.590 --> 44:29.630 "that everyone may realize the desert of his deeds." 44:29.630 --> 44:32.870 We'll pick up again on Thursday, with the utilitarian 44:32.870 --> 44:34.640 justification for punishment. 44:34.640 --> 44:37.090 And I'll see you then.