Moral dimensions of punishment

Moral and political theory, that is, should perceive itself as articulating how it is possible for inquirers, “immersed as they are in the contingent contexts of their lives and circumstances,” (Barcan-Marcus, 1980) to work out for themselves the details about what is right and wrong. As inquirers we proceed as best we can in the situations in which we find ourselves and which we create for ourselves, guided by the thought that experience is the key to truth, knowledge, and objectivity. As Dewey stressed, the pragmatist must see morality and politics as problem-driven, and those problems will vary as social practices, systems of domination and oppression, the religious makeup of a population, and a host of other circumstances vary.
There are many laws that regulate the publication and dissemination of pornography; however, they take what some might term a rather permissive attitude toward consensual sexual activity between adults. Since this is an area in which morality law differs quite considerably in the United States and Europe.
Included in the subcategory of offenses against morality are drug and consensual sex offenses. The English have a framework of laws classifying drugs into different categories and proscribing their unlawful importation, production, and possession. Although the English do permit heroin to be supplied to registered addicts, this is done far less frequently than might be envisaged.

Durkheim was one of the leading thinkers in this regard. In looking at the nature of modern industrial society, Durkheim focused on the moral basis of social order and stability – the basis of what he termed social solidarity. He argued that without the regulation of society, individuals would attempt to satisfy their own desires and wishes without regard to their fellows. This societal regulation had, he believed, to be based on a set of shared values; and a working society required that the individuals within it accepted these common values. Durkheim called this common set of values the collective conscience, which he defined as ‘the totality of beliefs and sentiments common to average citizens of the same society’.
“…Crime is, then, necessary; it is bound up with the fundamental conditions of all social life, and by that very fact it is useful, because these conditions of which it is a part are themselves indispensable to the normal evolution of morality and law….” (Crain, 1985)
The existence of social morality and social solidarity makes punishment inevitable and necessary, in that it reaffirms and strengthens the moral and social bonds. Of course, punishment is not the only process that does this; religion, education and family life all help to strengthen the collective conscience and to promote social cohesion.
Punishment has to be seen as a very important means of reinforcing moral and social order in less complex societies with a less developed division of labour. However, while methods of punishment change over time, the essential functions of punishment remain constant. Although the collective conscience of a society changes over time and people are outraged by different activities, punishment as a social process has an unchanging character.
Punishment is seen as an important and necessary part of the moral order of society. It helps prevent the collapse of moral authority and demonstrates the strength of moral commands. For Durkheim, the primary function of punishment is the reassertion of the moral order of society. From this analysis, punishment is not an instrument of deterrence that aims to prevent the repetition of a guilty act; “the threat of the unpleasant consequences of particular punishments are just practical problems that might stand in the way of the criminal’s desires” (Gill, 2003). Rather, it is a means of conveying moral messages and of indicating the strength of feelings that lie behind those messages and the common consciousness. In practical terms, punishment may have to be unpleasant, but in terms of the role of punishment in society Durkheim sees that as incidental: the essence of punishment is the expression of moral condemnation.
Because law and morality are so intertwined (laws, for example, often develop out of moral concerns) the distinction between the two is often ignored. But they are different: something moral may not be legal; something legal may not be moral. A law is a rule of conduct prescribed by properly constituted governing authority and enforced by sanctions. Whether or not an action is moral, by contrast, depends upon whether it can be supported by reasons within the framework of a set of moral assumptions, which themselves must be subject to critical appraisal.
The views in this paper are concerned primarily with the moral permissibility of expediency. The legal issue, however, is never far in the background for two reasons. Most people consider the legality of an act to have a bearing on its morality. Moreover, e.g. if a sufficient number of people became persuaded of the moral acceptability of euthanasia, then laws might change, making it legal.
The effective decisions, especially those which bend or erode established principles and adjust them to a changing environment, are taken behind the scenes. It follows that unless the innovator has the capacity and the contacts to negotiate successfully in this arena, he will not succeed. Behind the scenes he can exploit whatever personal effectiveness he has and he can make the hard realistic argument for whatever he proposes on the grounds of expediency.
He can show that both his opponents and their principles will be diminished if they refuse to bend to the demands of a real world. He does not have to argue for the essential justice of what he proposes — for that may well be something which can be only asserted and cannot be rationally argued to those who think otherwise — but only for its expediency. One suspects that many new programs in teaching and research have been introduced in this way: they will cost nothing; refusal to adopt them will bring severe penalties; the sponsor is going to make himself unpleasant to everyone concerned, if he does not get his way; and so forth.
But the victor is left in a very insecure position. His program has been accepted as a matter of expediency, but not as a matter of principle. It therefore is denied that halo of non rational acceptance, “that unthinking and unquestioning faith which could provide a protective inertia against the forces of revision, that same inertia which in the first place stood in the way of innovation.” (Pettit, 1997)
It follows from this that acceptance behind the scenes is only the first step. To achieve security, to achieve ‘tenure’ so to speak, the new program must be made acceptable in the public arena and taken into the security of one of those principled stockades. In short, an innovation is accepted when it becomes part of the sacred. This can rarely, if ever, be done without a contest.
So, at the end, we come to the real dilemma which far transcends, while it encompasses, the three-way pull of scholarship, collegiality and service. It is in reality a choice between equal evils: the open world of principle and the shadowed world of action. To choose one or the other is foolish, and the sensible man can only pilot his way between them. In the end it makes no sense to ask who steers the ship: Is it morality or expediency? Are the men in the smoke-filled rooms really those at the helm? They may be at the helm, but if there are no principles and there is no front arena, they have no course by which to steer.
Scylla is the rock of principle: expediency is Charybdis. Politics being what they are, the ship seldom contrives to steer a straight course between them. Usually, if there is progress, it is achieved by bouncing from one rock to another.
“What I hope to have shown is that there are some good reasons for thinking that we can make assertions or have genuine beliefs about what is right and wrong” (Phillips, 1983), just and unjust, cruel and kind; that we can inquire about the correctness of those beliefs; that our moral deliberations aim at the truth. And I hope to have shown that if we are to make sense of this, we must conduct ourselves via democratic principles – ones which encourage tolerance, openness, and understanding the experiences of others. By way of contrast, if our philosophical theory says that there is no truth to be had, then it is hard to see how we can satisfy ourselves that the reasons for being tolerant outweigh the reasons for, say, striving to eliminate the other in our midst.
The same holds for a correspondence theory of truth, because it almost directly leads to the view that there is no truth about morals and politics. If truth is a matter of a statement’s getting the physical world right, then how could we possibly think that statements about what is just and unjust might be true or false? I have not in this paper spent a great deal of time on the independent epistemological arguments for pragmatism, but its comparative advantages ought nonetheless to be apparent. True to the phenomenology of morals and true to a democratic vision of inquiry, it gives us something to say to the Schmittian and to ourselves about why intolerance is wrong.
Resources
Barcan-Marcus, Ruth (1980) ‘Moral Dilemmas and Consistency’, Journal of Philosophy, lxxvii, 3.
Crain, W.C. (1985). Theories of Development. Prentice-Hall. pp. 118-136
Gill, F.E. (2003). The Moral Benefit of Punishment. Lexington Books.
Pettit, Philip (1997) Republicanism, Oxford: Clarendon Press.
Phillips, Anne (1993) Democracy and Difference, University Park, Pa.: Pennsylvania State University Press.
 

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