Moore on Justifying Retributivism (Part Two)

(Part One)

This is the second post in a brief series looking at Michael Moore’s article “Justifying Retributivism”. In part one, I introduced the conceptual framework Moore uses to support his justification of retributivism; in this second part, I turn to the actual argument Moore uses to justify retributivism.

Before we start, it’s worth reemphasising what it is that Moore is really trying to justify with his argument. As we saw the last day, Moore takes retributivism to be the principle that we have a moral obligation to punish those, and only those, who are guilty of wrongdoing. Moore interprets this principle in a deontological manner. In other words, he believes that the obligation to punish holds irrespective of any positive or negative effects that the punishment might have. This is partly because he takes punishment to be an intrinsic good. In trying to justify retributivism, Moore is trying to justify this complex of views about the nature of punishment.

How does he do it? That is what we are about to see.


1. The Thought Experiment and the Argument
Moore takes our intuitive judgments about particular cases seriously. He thinks we derive our more general ethical principles via abductive inference from particular judgments. This results in a kind of reflective equilibrium in which our general principles cohere with (are in equilibrium with) our intuitions.

Aiming for reflective equilibrium is probably the most common strategy in applied ethics, mainly because, as David Boonin points out, no other methodology seems to be available. The differences, such as they are, come between those who afford decisive weight to our intuitions and those who afford decisive weight to rationally compelling general principles. Peter Singer would be an example of someone who belongs in the latter camp; Moore seems to belong in the former.

This obviously influences how Moore argues for retributivism. He does so by first developing a thought experiment, asking us to consider our judgments about this thought experiment, and then arguing that only retributivism can account for these judgments. This is an acceptable form of argument, provided one accepts the methodological strategy outlined above.

Let’s look now at the thought experiment Moore uses as the basis for his argument. It is inspired by the story of the Russian nobleman in The Brothers Karamazov . Roughly, the story is the following: there is nobleman who owns a particularly nasty and vicious pack of dogs. On one occasion he commands these dogs to tear a young child limb from limb, and he forces the child’s mother to watch this barbaric act. The question arises: what do we think is the appropriate response to this state of affairs? The suggested answer is: we think the nobleman should be punished.

This suggested answer provides some prima facie support to retributivism, but Moore knows he isn’t home and dry yet (far from it) since alternative theories of punishment might sustain our intuitive judgment about this particular case. So Moore adds a couple of qualifications.

First, we are asked to assume that no purpose other than that of harming the guilty party can be served by the punishment. In other words, we are to assume that the punishment could not serve as a deterrent for would-be wrongdoers - perhaps this is because we are part of an island society that is about to disband or collapse.

Second, we are to consider two variations on the thought experiment: (i) the first-person version in which we ourselves are the Russian nobleman and (ii) the third-person version where we simply bear witness to the Russian nobleman’s act.

What happens when we include these qualifications? Moore thinks we will still think that punishment is warranted. We will think it warranted in the first-person scenario due to our strong sense of moral guilt for what we have done; and we will think it warranted in the third-person scenario due to an appropriate feeling of empathy for the victims. This suggests that our intuitive judgments are strongly in line with the retributivist principle. Furthermore, since no other moral purpose can be served by punishment in this scenario, we are inclined towards the view that punishment is an intrinsic good.

All of this can be crafted into a more formal argument in favour of retributivism. As follows:

(1) We are justified in accepting whatever moral principles and concepts best account for our intuitive judgments about particular cases. 

(2) The principle of retribution and the intrinsic goodness of punishing the guilty best account for our reaction to the two scenarios outlined above. 

(3) Therefore, we are justified in accepting the principle of retribution and believing in the intrinsic goodness of punishing the guilty.

The diagram below summarises most of the above.

2. Charges and Responses
Moore acknowledged that his argument suffers from a number of apparent defects. Five of which have featured in the literature and each of which he attempts to respond to. Some of these criticisms get into larger debates in moral philosophy, but I’ll try my best to summarise them here.

(a)  The Charge of Circularity : A common rejoinder to Moore’s argument is to charge it with circularity. It would appear that his general retributive principle is being sustained by nothing more than a retributive judgment in a particular case. This seems to beg the question as to whether retributivism is justified. Moore notes that there a few different ways of making the charge of circularity, not all of which are compelling. For instance, he thinks it is clearly wrong to think that a judgment about a particular case is literally the same thing as the principle one generalises from that particular case. An alternative way of making the charge is to argue that since the judgment in the particular case is about the desert of the guilty it makes the general principle about the desert of the guilty trivial. Moore rejects this. He argues that the judgment in the particular case is not about desert but, rather, about punishment simpliciter . Desert is the more general concept that helps to explain the judgment about the particular case. 

(b) The Charge of Illegitimacy : Some argue that Moore’s methodology — that of deriving general principles from judgments about particular cases — is illegitimate, that you can only derive principles of this sort from other, more basic, principles. Moore responds by saying that such a charge forces us back into the kind of foundationalist epistemology that has largely been rejected. Now, there are certainly some cogent contemporary defenders of foundationalism, but I think Moore has a reasonably defensible point here. 

(c) The Charge of Subjectivity : Another methodological criticism is to make the point that Moore’s coherentist justification of general ethical principles cannot help us to arrive a objective ethical truths. At best, it can help us to arrive at a subjectively coherent web of beliefs. This gets a the issue of how much weight is to be attached to intuitive judgments in ethical reasoning, an issue I’ve covered in my series on evolutionary debunking arguments. As noted in that series, how seriously this charge is taken depends on one’s metaethical views. An anti-realist is likely to be unperturbed by the reliance on subjective judgments, but a realist might be. 

(d) The Charge of Emotionality : It could be argued that the responses to the particular cases outlined engage the non-rational, emotional faculties — indeed, Moore encourages such an interpretation when he appeals to feelings of guilt and the sense of empathy — and that they cannot then be used to support rational moral principles. This criticism doesn’t take issue with the particular sort of emotions being tweaked by the thought experiments, but rather with the more general use of emotions. This criticism only works if one thinks that the emotions have no cognitive element to them, something which many would now reject. It is also worth bearing in mind that there are some who argue that moral judgments are, properly understood, entirely constituted by emotions. Moore rejects this view so he is inclined to downplay the strength of the connection between the emotions and the moral principles that we derive from the particular cases. He argues that emotions are our main heuristic guide for discovering moral truths, but nothing more than that. 

(e) The Charge of Narrowness : A final criticism of Moore’s argument is that the retributive principle derived from our responses to particular cases like those outlined above cannot be general enough to cover all instances of culpable wrongdoing; it can only cover instances of wrongdoing that are sufficiently similar to those outlined above. This is a problem for Moore since he thinks that the retributive principle undergirds the entirety of the criminal justice system. The response here is complex since it depends on how “wrong” one takes all criminal acts to be. It is, after all, possible that the legal system is too harsh or even outright immoral in criminalising certain forms of conduct. Moore’s approach here is piecemeal. In the case of clear moral wrongs that are also criminal, he thinks the principle will carry over, although, understandably, the strength of the deserved punishment will decrease with the gravity of the wrongdoing. As for acts that are morally neutral or morally good that happen to be criminalised, he thinks the principle will not carry over. So much the worse for any legal system that engages in such arbitrary criminalisation.

This then completes Moore’s defence of retributivism. No doubt the methodology will still seem questionable to many and the conclusion raises further questions: how do we know when someone deserves punishment? Which forms of punishment are proportionate responses to which forms of wrongdoing? And so on. I’ll be looking at some of these issues in the near future.

Moore on Justifying Retributivism (Part One)

Well, here I am. After a couple of months hiatus (my longest ever) I am now back and ready to blog. As mentioned yesterday, I'm going to be integrating the content of this blog more directly with my ongoing research and teaching. This means you can expect to find a lot more posts dealing with applied ethics, the philosophy of responsibility, the philosophy of evidence, and game theory. Don’t worry though, I’m hoping to do some posts on the philosophy of religion when I get a chance (maybe I’m being naive).

Anyway, for my first set of substantive posts, I’m going to be looking at retributive justice and the death penalty. This is part of an attempt to prepare for some lectures I’ll be doing later in the year on the ethics of the death penalty. I was going to launch directly into a discussion of the arguments for and against the death penalty (once again using the book Contemporary Debates in Applied Ethics as my guide), but since those arguments rely, in part, on an understanding of retributive justice, I thought I’d back-up and consider that concept in a little more depth.

As a result, I’m going to spend the rest of this post focusing on a paper by the legal philosopher Michael Moore (not to be confused with the documentary film director of the same name). The paper is the following:

• “Justifying Retributivism” (1993) 27 Israel Law Review 15

The title hints at Moore’s own philosophical leanings (he has been one of the most prominent defenders of retributivism in the recent past) but in the article he does a good job clarifying the nature of retributivism, and presenting arguments that can be offered in its defence. I’m going to look at both of these in what follows.


1. What is Retributivism?
We can begin with a simple definition. As Moore puts it, “retributivism is the view that we ought to punish offenders because and only because they deserve punishment.” (p. 15) In addition to this, retributivism is usually taken to include a proportionality constraint. In other words, the retributivist usually believes that the punishment of the guilty must be proportionate to their level of wrongdoing. Since I’m ultimately going to be considering the death penalty, it’s worth flagging at this point that death is taken by some to be the proportionate punishment for murder and perhaps some other offences.

Moore thinks that there are a number of ambiguities present in this basic definition. These need to be addressed and he spends several pages trying to do so. We can summarise the results of this exercise as follows:

• The definition of retributivism appeals to the concept of desert ( i.e. the idea that the connection between an agent and his act sometimes deserves a certain kind of treatment). All theories of punishment, retributive and non-retributive, make some sort of appeal to this concept. What distinguishes the retributivist is his belief that desert is both a necessary and sufficient condition for punishment. What’s more, the retributivist also typically holds that desert is an exclusive condition for punishment, i.e. no other condition will warrant punishment. Punishment may well have as a consequence the deterrence of wrongdoing or the increase of the aggregate sum of happiness in a society, but these are happy accidents, not alternative grounds for punishment.

• Like all moral concepts, retributivism, if accepted, places moral demands on both state officials and citizens. But what is the nature of these demands? Sometimes it is believed that retributivism merely makes punishment of the guilty morally permissible - something we can do if we wish, but which are not obliged to do. Moore thinks this is too weak. He thinks that retributivism actually makes punishment of the guilty morally obligatory. In other words, it gives us a duty to punish the guilty.

• A popular distinction — one endorsed by John Rawls and HLA Hart — is that between the justification for particular acts of punishment and the justification for institutions of punishment as a whole. Hart, for example, held that particular acts of punishment could be justified on retributive grounds, while institutions of punishment could be justified on more utilitarian grounds. Moore doesn’t buy this distinction, he thinks the justification for both must be the same. He has a reason for this that will become apparent when we consider his arguments in favour of retributivism.

• Retributivism is often thought to be justified solely on deontological grounds. But Moore thinks this is need not be the case. The retributivist believes that punishment is an intrinsic good (one among many possible intrinsic goods that need to be promoted) and so it is conceivable that he could justify punishment on consequentialist grounds. Nevertheless, Moore considers himself to be a deontologist about punishment and this comes through in his subsequent arguments.

With these clarifications out of the way, we can proceed to consider how one goes about arguing in favour of retributivism.


2. Arguing for Retributivism
Moore identifies three possible ways in which the retributivist can argue for his position:

(a) The Conceptual Argument : The retributivist can argue that his is the only acceptable theory of punishment because the concept of punishment, properly understood, can only be applied to those instances in which people are harmed because they deserve it. This argument would involve a typical exercise in conceptual analysis. Such an analysis is unlikely to be persuasive since even if it is correct it leaves open the deeper question of whether punishment is something we wish to have at all. 

(b) The Functional/Interpretive Argument : The retributivist can argue that his theory offers the best possible explanation (or “interpretation”) for the institutions of punishment that we currently happen to have. This argument obviously suffers from the same flaw as the conceptual argument, viz. it leaves open the question of whether we should have these institutions in the first place. 

(c) The Moral Argument : The retributivist can argue that his theory tells us what the morally correct reponse to certain acts of wrongdoing actually is. This kind of argument will appeal to whatever criteria or standards we take to justify moral beliefs. So if we are consequentialists, the argument will involve a cost-benefit analysis pointing to the respective goods that can be achieved by only punishing those who deserve to be punished; alternatively, if we are non-consequentialists, we appeal to whatever standards we use to justify actions as being intrinsically right.

Moore is, perhaps unsurprisingly, solely concerned with the third style of argument and his goal is to provide a version of it. This raises the obvious question: what standards will he appeal to when justifying the moral propriety of retributivism? At this point in the article, Moore launches into a discussion of the distinction between intrinsic and instrumental goods, on the one hand, and first- and second-order principles in ethics, on the other. It’s pretty interesting stuff, but I’m going to skip over much of it.

The basic idea is that the intrinsic/instrumental distinction is a metaphysical one concerning different types of value, whereas the first-order/second-order distinction is an epistemic one concerning the way in which we come to know of ethical truths. Moore holds that first-order principles are reached via an abductive inference from more particular second- or indeed third-order principles arising from particular cases. In other words, he is a kind of ethical intuitionist, in that he assigns considerable weight to intuitive judgments about particular cases, and uses these judgments to develop more general ethical principles. Frances Kamm is one of the more vigorous proponents of this approach to ethics.

This obviously has implications for the overall argument offered in favour of retributivism. Moore thinks that retributivism is a first-order principle, describing an intrinsic good, that we are categorically obliged to honour in our actions, even if this means we fail to maximise the overall good. Given his intuitionistic predilections, he justifies this conclusion by first considering particular cases, then deriving conclusions about intrinsic good and first-order principles from our judgments about these cases, and then showing why the principle arrived at cannot be followed in a consequentialist manner. I’ll consider this argument the next day.