Last time I observed that punishments are, by definition, given because they are deserved. This is the “retributive” view of punishment (although as mentioned earlier, this is the more traditional concept of “retribution” as requital rather than revenge or retaliation). Plamentz (1967), while not defining punishment to be retributive, suggests that it is only in societies which have professional judges and teachers where punishment would be seen as a means to an end, and that in “primitive” societies punishment would simply be seen as proper and fitting.
I do not mean to suggest that punishment serves no purpose beyond that of desert. I have already mentioned that it is a vital part of the concept of morality, or the concept of rules, that poor conduct should be punished. My point is that without the notion of desert, we are left with a deeply flawed concept of punishment. Lewis (1953) described punishment without desert as the “Humanitarian Theory Of Punishment”. Regarding its application to criminal justice he wrote:
According to the Humanitarian theory, to punish a man because he deserves it, and as much as he deserves, is mere revenge, and, therefore, barbarous and immoral. It is maintained that the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal. When this theory is combined, as frequently happens, with the belief that all crime is more or less pathological, the idea of mending tails off into that of healing or curing and punishment becomes therapeutic … But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question ‘Is it deserved?’ is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice.
Lewis argued that this theory, despite appearing merciful, would deprive criminals of their rights as human beings. The enlightened, non-retributive action, taken in response to crime would be as compulsory as retributive punishment, but not subject to the same restraints. While I hesitate to raise it to the level of human rights, I would suggest that in the education context the Humanitarian theory of punishment allows similar injustices.
Deterrence is the most commonplace, pragmatic justification for punishment. Docking (1987) observes that “the view of most teachers is that some punishment is necessary for deterrent purposes” but identifies the popularity of Bentham’s (1789) view: “But all punishment is a mischief: all punishment is in itself evil … It ought only be admitted in as far as it promises to exclude some greater evil”. A purely deterrent based system of punishment can be seen as (that most incoherent of concepts) a “necessary evil”. However, deterrents can act against justice in several ways. It is not necessary to punish the guilty to deter. Punishment of those who are thought to be guilty (“the usual suspects”) or punishment of wider groups of people than simply the guilty may also deter. Whole class punishments, in which every student in a class is punished regardless of guilt, is often a deterrent even though such punishment of the innocent is utterly unjust. If punishment was truly only about deterrence then collective punishment and victimisation of undesirable elements would be the order of the day. Similarly, there would be no reason to show restraint in punishment. If students were not deterred by a particular punishment, then there would be no reason not to increase its severity, no punishment could be unfairly harsh if there was no concept of desert to suggest the punishment needed to fit the crime. Punishment as deterrent would be more brutal and less discriminating than punishment as retribution. This, of course, doesn’t necessarily make it wrong but it does give a lie to those who suggest retributive punishment is cruel or unfair when compared with punishments given only as a deterrent.
The other proposed purpose of punishment is that of “rehabilitation”. The claim is that punishments can, in some way, reform the character of the punished. There is some truth to the suggestion that punishment can teach a lesson. Wilson (1971) suggests that punishment is educative because it consists in part of “seeing the point or rightness of the rules” as “it is because the rules are right that it hurts to break them”. Plamentz (1967) identifies punishment of young and “innocent” children as intending to “train them to `feel’ as they ought”. Peters (1966) adds the possibility that a punishment might serve as a “sharp shock” which would bring an offending student “to their senses”, breaking them out of a fantasy and causing them to contemplate what behaviour is or is not socially acceptable. Others, such as Piaget (1932), suggest specific ways of punishing that might reform. However, there are clear limits (noted by most of those named above) to the extent to which such an effect might take place. It is also less than clear that punishment is educative when it is intended to be purely educative. It seems to me more plausible that it is when a punishment consists of a clear judgement of moral fault and desert that it provides most to think about and learn from.
More importantly, without desert, there is once again no requirement that the punishment fits the crime. At the moment we see inappropriately lenient punishments (eg. a verbal warning, a day off school) that are intended to “reform”. However, particularly in light of the fact that such punishments never do reform, it would be equally justified to use inappropriately harsh punishments. If a child is being punished in order to be reformed then there is no point at which they have “done their time” and can cease being punished. The only justified punishment, even for a minor misdemeanour such as dropping litter, is one that continues until it is clear that they will never reoffend. Again, a supposedly humanitarian doctrine could be used to justify the most severe punishments.
It might seem odd that I am arguing against the principles of deterrent and reform on the grounds that it would lead to punishments that are too harsh, when normally I am complaining that punishments are not harsh enough. Actually, this all takes us back to the issue of human nature. If human beings were rarely inclined to do wrong then perhaps small deterrents would deter all wrongdoing and small penalties, of the right kind, could reform the worst offenders. The lenient punishments we currently see might be compatible with deterrent and rehabilitation if the desire to do wrong was rare and weak. The fact is that human beings are prone to doing wrong. Deterrents would have to be severe and rehabilitation extensive to prevent misbehaviour completely and there is no reason why the advocates of the Humanitarian theory of punishment should be aiming for anything less than this. The retributive approach to punishment seeks justice, it hasn’t failed if some offences are still committed. By contrast, if an offence continues to occur it hasn’t been deterred, and the offenders haven’t been rehabilitated and so, according to the Humanitarian theory of punishment there is no reason to cease punishing until reoffending becomes unthinkable. Of course, what happens in practice is that those who reject desert also fail to acknowledge what human nature is like. Then and only then, when what children are like and what can be done about it are both being ignored, do we arrive at the situation our schools are now in: a state of complete and utter denial.
References:
Bentham, J. An Introduction to the Principles of Morals and Legislation, Collins, 1957, first published 1789
Docking, J.W. Control and discipline In Schools: Perspectives and approaches,Second Edition, Harper and Row Ltd, 1987
Lewis, C.S. The Humanitarian Theory of Punishment, Res Judicatae 6, 1953
Plamentz, J. Responsibility, Blame and Punishment, in Laslet, P. and Runciman, W.C. (eds) Philosophy, Politics and Society: Third Series 1967
Peters, R.S. Ethics and Education, Allen and Unwin, 1966
Piaget, Jean The Moral Judgement Of The Child, Routledge and Kegan Paul, 1932
Wilson, P.S. Interest and Discipline in Education, Routledge and Kegan Paul, 1971
Kindness and Justice
March 21, 2009Chesterton (1905)
It always fascinates me that those who express disapproval of punishment take such a self-righteous tone. To me a belief in desert, and with it a belief in rewards and punishment, is an integral part of believing in right and wrong. If good deeds did not deserve to be rewarded, and bad deeds did not deserve to be punished, then it would be very doubtful whether “good” or “bad” would have any meaning at all. So why would somebody who denies desert, see themselves as occupying the moral high-ground, rather than denying the existence of any moral highground?
My theory is that it comes down to different virtues, in particular: being kind and being just. On the surface there is a similarity. Both kindness and justice require a concern for the worst off, and a belief in either might lead one to help others, particularly those who are suffering. However, there is a major difference. If you help others out of kindness you are helping because you feel like it. Ultimately it is about you. If you help others in the interests of justice, you help them because they deserve to be helped. It is about them. Kindness, while still a virtue, is limited by the extent of your compassion. Justice can only reach a limit by being satisfied. Acts of kindness serve our desire to do good, acts of justice serve goodness itself. Kindness seeks to order our actions; justice seeks to order the universe.
In practice the two are very different. Kindness suggests that we harm nobody, while justice requires the guilty are punished. Kindness might endorse feeding the starving; justice asks why they are starving in the first place and demands we do something about it. Kindness asks what we can afford to give; justice asks if there is anything we deserve to keep. Kindness can be given to anybody, even to cats and dogs; justice can only be given to the wronged. When you are praised for an act of kindness it is natural to say “that was the least I could do”. That is the most accurate description of kindness. We all, to some degree, live our lives in a kind way. None of us, to any degree, live our lives in a just way. It would take a deliberate effort never to make a kind action. It takes a deliberate effort ever to make a just action. If we listened to justice we might give away all we own to those who deserve it more. If we listened to justice we might have to give up control of our lives for the benefit of others. If we listened to justice we might have to get ourselves killed, by challenging those with the power. A little bit of kindness here or there is far, far easier.
Now, I don’t mean to dismiss kindness. In our day-to-day lives kindness improves the lives of those around us, particularly when it is born of love. In fact, very little else, does more to improve the lives of our friends, families, pets or acquaintances. It is good to be kind, and it is good that it is within our reach. But it is a personal quality. We can live kind lives; we can’t build kind institutions. We may have a kind mother, a kind friend or even a kind boss. We don’t shop in kind supermarkets, get educated in kind schools or live under kind laws. Even those institutions, such as charities, churches and families that might consider the practice of kindness to be part of their purpose would soon fall apart if that kindness was unconstrained. A charity which attempted to serve all good causes would soon cease to function. A church which embraced sin as much as sanctity would cease to be a church. A family into which everybody was adopted would cease to be a family. Justice, however, is something we can strive for in institutions. In fact this is about the only place we get to serve justice. Where we have power and authority over others, when we are making decisions between the conflicting interests of others, we are able to make decisions that aren’t about ourselves. A judge can be just. A politician can be just. A teacher can be just.
It is at this point we can turn to education. An education system can serve justice. It can seek to ensure that all receive what they are entitled to. It can give opportunities to those who lack them. It can provide education to the poor. It can judge the merits of different parts of the curriculum, and pass on a valuable heritage. It can make sure that nobody profits from harming the chances of others, and can see that children are governed in a fair manner and protected from each other. Unfortunately, these are not the aspirations of our education system. Kindness has taken over. No longer are children to be given greater opportunities or a chance to improve themselves. They are encouraged to feel good about themselves as they are now and their situation as it is now. No longer is hard work to be inflicted on the lazy; that would be cruel. The difficult choices involved in being just are to be replaced with the conviction that every problem could be solved if only everybody could be a little kinder. Punishment is rejected in favour of lavishing kindness on the guilty, even at the expense of their victims. Nobody is to be given what they deserve, when they can be given what seems nice. Even the word “education” is being sidelined, and replaced with words that suggest that schools are there simply to look after children not to improve them. An education system that was just in its actions would do far more for more children than one which simply allows the chattering classes to foist their kindness on the young. However, this is not on the horizon. Worse, if you dare cry out for justice, then you will be branded as uncaring. We live in a topsy-turvy world where it doesn’t matter how much harm you do as long as you appear to care about the people you are harming.
Reference:
Chesterton, G.K., Heretics, 1905
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