Great read! It would seem that causes can help one think of reasons. That is, if person A commits a crime becuase of a bad upbrigning -- then one could, hypothetically understand what aspects of that uprbringing made this person more likely to commit crimes, and then try and improve upon them. Thus, lack someone who steals because they lack education and training to do other jobs -- could get that. This is, admitedlly reform, and it is done very poorly in most places.
Hey Jason, thanks again for this informative and entertainig piece. A while ago, we already had a brief conversation about that topic, right? Unfortunately, I cannot remember the exact context. Anyway, I would like to add a few thoughts concerning the nature of law.
1. Besides deterrence, reform and social defence one could argue that proportional retribution is a fourth justification for the criminal law. I know that it might be out of fashion, but I think that it has serious philosophical implications if we would get rid of it.
2. The criminal law has indeed a focus on prohibition (certain actions are forbidden and punished). But 'the law' isn't just criminal law. In civil law, for example, many laws are designed not to prohibit something but to enable people to do something properly: how to properly set up a contract, how to write your will, how to get your tax returns, etc. So maybe, there is more to the law than just prohibition. A philosopher (I think it was Dworkin) wrote that the law is not just a set of rules.
Thanks for your note! It's always good to hear from you. You make a couple of excellent points. Let me deal with the second one first. You are, of course, absolutely correct that law is more than just criminal law. There is civil law as well. All I can say is, I wish I'd thought about that a month ago when I was writing this! Of course, I could come up with the excuse that the Substack is called 'Crime & Psychology' and I wanted to stay within the remit, or that 'Civil and Criminal Law: What is is good for?' isn't such a swinging title. Even so, these are entirely post-hoc justifications.
You are quite right that retribution is one of the classic justifications of criminal law. This time, I did make a conscious decision not to deal with it here. The piece was already edging towards 2000 words and anyway not too many psychologists seem to have written about it, so I had little to say. That may be because retribution as a justification has mostly gone out of favour in recent decades. I do have in the back of my mind a piece on deterrence, reform, and retribution, though. I'll write that this summer, maybe, if I can keep then word count down.
An interesting side-issue is this: social defence really isn't, in its purest form, any justification *at all* for punishment. The implication is that we law-abiding citizens need to be protested from those who would do us harm, and that's why we do things to them. Those 'things' though need not be negative. Giving them a long vacation on a tropical island would be just as effective as far a social defence is concerned. It would not go down well in the press, however.
I really did not mean to push you into an explanation why you have not mentioned certain things. A good essay (and literature in general, I guess) is often a matter of focussing on certain aspects and leaving out the rest; which is difficult enough. And you did an excelent job with that.
You are on point with your observation that the argument of proportional retribution has 'mostly gone out of favour in recent decades'. Therefore, it was the right decision to not mention it in your essay. I am not in favour of retribution either, but I found that abandoning this concept leads to serious philosophical problems which I could not solve, yet. I mentioned it because I think that proportional retribution should not be entirely excluded from the debate just because people feel uncomfortable with it (which is often the case); it should be abandoned on the grounds of good arguments.
I think you are right! If you give up on retribution, it seems to me, you often end up with the kind of problem that I mentioned above - we might as well send convicted criminals on a cruise or something, rather than literally punish them. Doing that somehow doesn't seem to fit with our idea of justice, which always seems to incorporate some sort of retributive element, which is in and of itself difficult to justify. Was that the kind of philosophical problem you had in mind or are there other twists that I haven't thought of?
One problem would be that there are people who commit serious crimes once in their lives under exeptional circumstances: one example would be the husband who kills his wife's lover in a fit of rage after surprising them 'in flagranti'. In such a case, the offender has been a normal, law abiding citizen all his life. And it is very likely that he will be a law abiding citizen again. Therefore, there is no need to deterr him from commiting crime, and he doesn't need to be re-socialized, either. So what would be the justification to punish him at all if not proportional retribution?
Abandoning the concept of retribution would lead, in certain cases, to outcomes that could be perceived as unfair and unjust. For example, would it be fair to punish to people, who have committed the same crime, differently only because they have different prospects of resocialization?
Interesting and valuable read.
Thank you!
Great read! It would seem that causes can help one think of reasons. That is, if person A commits a crime becuase of a bad upbrigning -- then one could, hypothetically understand what aspects of that uprbringing made this person more likely to commit crimes, and then try and improve upon them. Thus, lack someone who steals because they lack education and training to do other jobs -- could get that. This is, admitedlly reform, and it is done very poorly in most places.
I really enjoyed this essay. Thank you. Despite my career in the industry, it told me much that I hadn’t known (or I knew and have since forgotten).
Thank you, John. It’s very kind of you to say. Which job were you in?
Forensic Psychatrist in UK.
Hey Jason, thanks again for this informative and entertainig piece. A while ago, we already had a brief conversation about that topic, right? Unfortunately, I cannot remember the exact context. Anyway, I would like to add a few thoughts concerning the nature of law.
1. Besides deterrence, reform and social defence one could argue that proportional retribution is a fourth justification for the criminal law. I know that it might be out of fashion, but I think that it has serious philosophical implications if we would get rid of it.
2. The criminal law has indeed a focus on prohibition (certain actions are forbidden and punished). But 'the law' isn't just criminal law. In civil law, for example, many laws are designed not to prohibit something but to enable people to do something properly: how to properly set up a contract, how to write your will, how to get your tax returns, etc. So maybe, there is more to the law than just prohibition. A philosopher (I think it was Dworkin) wrote that the law is not just a set of rules.
What do you think?
Thanks for your note! It's always good to hear from you. You make a couple of excellent points. Let me deal with the second one first. You are, of course, absolutely correct that law is more than just criminal law. There is civil law as well. All I can say is, I wish I'd thought about that a month ago when I was writing this! Of course, I could come up with the excuse that the Substack is called 'Crime & Psychology' and I wanted to stay within the remit, or that 'Civil and Criminal Law: What is is good for?' isn't such a swinging title. Even so, these are entirely post-hoc justifications.
You are quite right that retribution is one of the classic justifications of criminal law. This time, I did make a conscious decision not to deal with it here. The piece was already edging towards 2000 words and anyway not too many psychologists seem to have written about it, so I had little to say. That may be because retribution as a justification has mostly gone out of favour in recent decades. I do have in the back of my mind a piece on deterrence, reform, and retribution, though. I'll write that this summer, maybe, if I can keep then word count down.
An interesting side-issue is this: social defence really isn't, in its purest form, any justification *at all* for punishment. The implication is that we law-abiding citizens need to be protested from those who would do us harm, and that's why we do things to them. Those 'things' though need not be negative. Giving them a long vacation on a tropical island would be just as effective as far a social defence is concerned. It would not go down well in the press, however.
I really did not mean to push you into an explanation why you have not mentioned certain things. A good essay (and literature in general, I guess) is often a matter of focussing on certain aspects and leaving out the rest; which is difficult enough. And you did an excelent job with that.
You are on point with your observation that the argument of proportional retribution has 'mostly gone out of favour in recent decades'. Therefore, it was the right decision to not mention it in your essay. I am not in favour of retribution either, but I found that abandoning this concept leads to serious philosophical problems which I could not solve, yet. I mentioned it because I think that proportional retribution should not be entirely excluded from the debate just because people feel uncomfortable with it (which is often the case); it should be abandoned on the grounds of good arguments.
I think you are right! If you give up on retribution, it seems to me, you often end up with the kind of problem that I mentioned above - we might as well send convicted criminals on a cruise or something, rather than literally punish them. Doing that somehow doesn't seem to fit with our idea of justice, which always seems to incorporate some sort of retributive element, which is in and of itself difficult to justify. Was that the kind of philosophical problem you had in mind or are there other twists that I haven't thought of?
One problem would be that there are people who commit serious crimes once in their lives under exeptional circumstances: one example would be the husband who kills his wife's lover in a fit of rage after surprising them 'in flagranti'. In such a case, the offender has been a normal, law abiding citizen all his life. And it is very likely that he will be a law abiding citizen again. Therefore, there is no need to deterr him from commiting crime, and he doesn't need to be re-socialized, either. So what would be the justification to punish him at all if not proportional retribution?
Abandoning the concept of retribution would lead, in certain cases, to outcomes that could be perceived as unfair and unjust. For example, would it be fair to punish to people, who have committed the same crime, differently only because they have different prospects of resocialization?