To: Paul E.
From: Geoffrey Klempner
Subject: Determinism and the justification of punishment
Date: 20th October 2011 14:11

Dear Paul,

Thank you for your email of 13 October, with your first essay for Possible World Machine, in response to the question, 'In the light of the critique of 'free will', can blame and punishment ever be rationally justified? Consider hard cases, such as brainwashing, crimes of passion, the influence of drugs, medical or psychological conditions etc.'

This is a very good essay. For the purposes of your argument, you assume the truth of determinism, as a metaphysical thesis, illustrating this with Laplace's famous hypothesis concerning a 'Supermind' capable of discovering the state of the universe at any given time, from a total description of its state at any other time.

In your second paragraph, you say that, given determinism, 'retributional justice would be difficult to justify'. I suspect that you were aware here of an alternative view of the nature of justice, according to which the aim of punishment is not retribution but rather simply deterrence and correction. These aims are fully compatible with determinism. If this is indeed all we are seeking to do when we punish, then the only relevant consideration should be whether the individual in question, at the time when they did the action for which they are being punished, would have been deterred by the thought of punishment, or, whether as a result of punishment they are less likely to do the action again if they find themselves in similar circumstances.

We can apply this to the case of hypnosis. It may be true, as you state, that a person can only be hypotized with their consent, although there seems to be a widely held belief that this is not always true. But let's assume that it is. I volunteer to get hypontized by a stage hypnotist in a night club and the next day, inexplicably I murder my next door neighbour. It turns out that the hypontist whispered the suggestion in my ear. Well, obviously, I am going to think twice about allowing myself to be hypontized again! But given the nature of hypnotic suggestion, it is clear that 'the thought of punishment' has no effect whatsoever.

In the third paragraph you quickly move to a 'compatibilist' view, according to which we can talk of a person being 'free' or not 'free', even on the assumption of the truth of determinism. More could have been said here. The point is that there are certain kinds of 'causal chain' which lead to action, which we view as cases of 'personal responsibility' and other kinds of 'causal chain' where a person is not held responsible. The former kind involve the human process of (unforced) deliberation and choice.

So far, so good. But now we face the real challenge, which is that the way a person deliberates and chooses is very much a consequence of their social upbringing and experiences. This doesn't matter, if we adopt a theory of punishment as 'deterrence and/ or correction' as above. If the thought of punishment has a deterrent effect, or if actual punishment has a corrective effect, then it is simply irrelevant that the individual concerned was likely given their upbringing and circumstances, to do the thing that they did. Suitably chastised, they will (we hope) be less likely to do it in future.

But is that an acceptable view of punishment? It is acceptable to say that no punishment is 'deserved', in the sense which most persons understand this, namely as just retribution for what the person did?

F.H. Bradley, a 19th century British follower of Hegel, in his first book 'Ethical Studies' offers a refutation of the idea that punishment is justified as correction and deterrence. The Master of Hounds likes to give his dogs a good thrashing before they go out on the hunt. Why? 'To show them who is boss, and deter them from misbehaviour.' In that case, why not do this with human beings? Why wait for someone to commit a crime? The answer is, obviously, that it would be 'unjust'. But by what standard of 'justice', if we reject the idea that punishment is 'deserved'?

You make the point that not everyone in given circumstances turns to crime. That is true, if we consider things from a sufficiently lofty perspective, where individual differences are not considered. Let's say that only 5 percent of persons from deprived backgrounds turn to crime. (I'm picking this figure off the top of my head.) The other 95 per cent were able to develop into good, honest citizens despite their social handicap. However, the closer we look at the 5 per cent, the more reasons we discover why these particular individuals made the choices that they made. That's the point of determinism. There is never an opportunity to make an alternative choice, because every choice is the consequence of external circumstances and the agent's current psychological state.

All the best,

Geoffrey