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What is the justification for punishing criminals? By "punishing" I mean imposing some disvalue on the criminal beyond that of restoring to the victim that which was taken (when such restitution is possible) and after the threat/actuality of rights violation has passed. I take it for granted that it is justified to return to the victim that which is rightfully theirs. I also take it for granted that it is proper to use force against a criminal to restrain them from violating rights when they are in the act of doing so. It is the post-violation, non-restitution, governmental force that is giving me pause.

Here is a breif sketch of the reasoning that is leading to my confusion--maybe someone out there can point me to where I am going wrong: the criminal has rights; the government's use of force against the criminal violates those rights unless the force is wielded to protect the rights of others; because the threat to rights has passed and restitution has been made, the use of force can no longer be said to be protecting the rights of others (or can it?).

I know that the standard refrain is that force can be used only in "retaliation" to the use of force, but I deliberately avoided using that language because I think it begs the question. Retaliation seems to contemplate both prevention/restitution and punishment--my question is what justifies the punishment aspect (so please don't just tell me that it is justified because it is in retaliation to the criminal's force!).

Let me futher illustrate with an example--suppose you are in the state of nature (no government yet). A person tries to assault you. Your right to self defense clearly allows you to use force to defend yourself. You successfully hault the attack and incapacitate the assailant (you knocked him unconscious). In the process you sustained some minor cuts--you leaf through the attackers wallet and remove a few bills (the exact amount needed to cover your medical expenses and pain and suffering). Now what? The threat is over, and you have been made whole. Are you now justified in going further and punishing the attacker, say by giving his unconcious body a gratuitous beating, or by taking more money from his wallet than is needed to make you whole? If your right to self defense does not justify such punishment, then where does the government get the right to punish? Is not the government's coercive power only justified as a delegation from each individual of their right to self defense? If an individual does not have the right to punish, then how can they delegate that which they do not have to the government?

Classical justifications for criminal punishment may help illuminate by contrast:

  1. Retributivism (Kant)-- Justice demands harm for harm. Why? It is a categorical imperative.
  2. Incapacitation -- Imprisoning the criminal prevents him from committing further crimes.
  3. Deterrence (Bentham/Utilitarians) -- Punishment of criminals disincentivises (a) the person punished and/or (b) others from breaking the law in the future.
  4. Rehabilitive (Christian/Humanists) -- Punishment can help reform the criminal (and maybe save their soul!)

Greg, if you are reading this, I read your answer to the question "Under what circumstances is the death penalty valid?" I also read your article which you linked in the answer. I found your writing interesting, but I am not quite satisfied. You seemed to be comming down on the Retrbutivism side. In your article you said "Objectivists support a retributivist justice system." Why? In your answer you said "responding to a criminal misdeed with only compulsory reparations would be unjust." True, but why must justice be satisfied? I know that may seem like a silly question to some--we do call it the "justice" system after all--but I mean it seriously. Justice is perfectly valid as an individual virtue--it is my interest to treat others justly. But does it simply transfer from the individual realm to the governmental realm so easily? I am not saying you are wrong, I just would like to know the steps in the argument that lead to the conclusion that the government must meet the demands of justice in all cases.

As for incapacitation and deterrance, they have a superficial rights-protecting appeal, but they have problems of their own. For example, incapacitation theory requires the assumption that because a person has offended in the past they will offend in the future (else what is gained by incapacitating them?). Certainly most criminals do recidivate, but is it fair to treat all, ex ante, as if they will? Deterrance with respect to the specific criminal suffers from the same problem. Deterrance with respect to other people has the problem that we are punishing one person merely in order to prevent the probable (not certain) future conduct of other persons--talk about using persons as a means to an end rather than as ends in themselves! Furthermore, these theories are sucseptible to slippery slopes--if incapacitation is good, then why not kill/imprision-for-life for all offenses, and if deterence is good, why not impose draconian penalties for small violations--now that would deter crime!

These theories all would be fine if we assumed that a criminal lost all claim to rights once they committed their crime (indeed some take this position). Then there would be no problem with what we did to them--we could simply choose the option that produced the best results from a Utilitarian-style perspective. All my fretting is conditioned upon the premise that the criminal does have their rights still, and that what we do to them must be justified somehow. Am I wrong here?

Anyway, I'm just confusing myself even more now, so I'll stop and let someone (hopefully) answer. Thanks.

asked Sep 22 '11 at 15:34

ericmaughan43's gravatar image

ericmaughan43 ♦

My personal resolution. Objectivism is unique in there being no overarching authority other than reason. Each of us is a 'moral island' to itself. An individual's actions reflect that individuals moral judgement, our internal 'right or wrong'. Reason is the tool we use to judge another's actions as harmful or benign. Thus, harm to others stem from a corrupt moral code or a lack of understanding. Without society, personal safety requires that we find the answer as to why an individual acted as they did, meting out an appropriate response - teach those who can be taught, eliminating the rest.

(Sep 24 '11 at 11:19) garret seinen garret%20seinen's gravatar image

Further, as independent moral island join to form a society, moral laws will reflect the containment of harm to individuals. The legitimacy of punishment still stems from the fact that each of us can only act in accordance with our root moral beliefs. Baring accidents and the lack of knowledge, the safety of innocent individuals, harmless to others, means removal of noncomplying deviants. But their own actions set the standard of judgement - deliberate harmful act endorse harsh responses.

(Sep 24 '11 at 11:29) garret seinen garret%20seinen's gravatar image

So essentially you are talking about what I called the Incapacitation justification--punish offenders to make sure they cannot pose any further danger--is that correct? Do you think there is any problem with assuming that because a person has committed one criminal act they will necessarily commit others? Or is it just a risk that we are willing to take in order to protect the innocent?

(Sep 24 '11 at 15:52) ericmaughan43 ♦ ericmaughan43's gravatar image

The proper evaluation of why a harmful act was committed is the base for justice. Fully appreciating that an individual will act out his own morality gives us a window into his soul. I think an Objectivism trained psychologist could, with a high degree of accuracy, determine recidivism. Reason, equality and the restriction of force are the common attributes required to be considered a candidate for freedom. Those unwilling to commit to those ideals should be expelled or locked up, as one doesn't deserve freedom without granting it to others.

Hope that clarifies my viewpoint.

(Sep 25 '11 at 13:14) garret seinen garret%20seinen's gravatar image
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The question answers itself (but isn't satisfied with its own answer):

Retaliation seems to contemplate both prevention/restitution and punishment [yes, exactly!]--my question is what justifies the punishment aspect (so please don't just tell me that it is justified because it is in retaliation to the criminal's force!).

Objectivism, as a philosophy, doesn't really have a comprehensive "Theory of Criminal Punishment." Objectivist philosophy doesn't attempt to prescribe how much retaliation and in what exact form is appropriate under what specific circumstances. That is a task for other sciences, such as law and philosophy of law. Objectivism certainly recognizes that immediate self-defense against an attack-in-progress (or about to be so) is a potentially valid form of retaliation, as is restitution (when possible) and also after-the-fact retribution and/or punishment. There are many specific forms that retaliation can take, and Objectivism does not attempt to spell out which form is most appropriate in various circumstances. Objectivism also implies that retaliation must be commensurate with the original initiation, but again does not spell out in detail how to perform the actual measurements of magnitude and form of retaliation versus the severity and extent of the initiation against which the retaliation is directed.

In other words, the question is asking for something that goes beyond what a reality-based philosophy can offer. To answer the question, what is needed is informed, knowledgeable individuals (individuals who have studied all the issues and typical relevant cases in detail), who then apply Objectivist principles to formulate specific rules of law and jurisprudence. And the results of such intellectual effort won't necessarily be unique, i.e., there may well be more than one valid conclusion proceeding from the same facts, making it largely optional as to which possible rules of law to adopt.

I see some further issues in the question, as well:

  1. How rights arise. Rights are not unconditionally "unalienable"; they are not intrinsic absolutes. There is an element of choice involved in rights. Man has rights only insofar as he chooses to live by reason, or at least respects others' freedom to do so. It is because of the nature of reason and its role in man's survival that man needs freedom of action in a social context, i.e., rights. A criminal who chooses to abandon reason and infringe the freedom of action of others, paralyzing their efforts to live rationally, thereby loses whatever rights he would have had if he had chosen to live by reason. The issue of when (and whether) he thereafter regains any of those lost rights depends on the severity of what he did and (by logical implication) might do again in the future. (Again, this is only a broad principle. To formulate more precise and specific rules of law, further consideration of a wide range of factual cases is essential.)

  2. Where rights arise. Political rights are meaningless in the absence of some kind of governmental authority to enforce them. Without a government, man still has definite ethical principles by which he should strive to live, in order to live effectively; but rights as a political concept and institution effectively don't exist until a system of rights, i.e., a proper government, is created. In the "state of nature" which the question mentions, it cannot be said that anyone has any rights, yet (politically). The actions of individuals will be guided by ethics (if they choose to live by reason at all). If the question hypothesizes that there is some moral authority somewhere that is observing what individuals do, how so? Where or what is such an authority? Individuals will find that reality itself demands that they live by productiveness and trade guided by reason, not by initiating physical force against others; and they will consequently seek to establish a group arrangement, i.e., a society, to protect themselves from any outsiders seeking to conquer and plunder them, as well as to aid in maintaining order (rights) within the society.

Broad principles, such as the ones that Objectivism offers, do not provide a fully developed "Theory of Criminal Punishment," but they provide a crucial first step: a broad framework within which to work out further details as the need arises. Refer to the entry on "Retaliatory Force" in The Ayn Rand Lexicon for a brief statement of the Objectivist framework. Also note the second excerpt in that collection, from Galt's Speech, referring to "destroying destruction." If the initiation of force is of such severity and tenacity that it is likely to occur again as soon as a previous retaliatory action is ended (as is often the case in war between nations), then the previous retaliation needs to be greater than the previous initiation, great enough to make sure the imminent future threat is fully destroyed. Morally, the "side of rightness" rests with those who live by reason -- peacefully producing the values their lives depend on, voluntarily trading with others if they see mutual benefit in it, and resorting to physical force only in retaliation against any others who may reject reason and initiate force.

(Notice, also, that complexities can sometimes arise in identifying what constitutes an initiation of physical force, particularly in cases of "indirect" physical force such as fraud and unilateral breach of contract -- as well as in the appropriate forms and scope of retaliatory force. Broad principles do not mean that borderline cases or complicating factors can never occur.)


Comments by the questioner highlight certain issues that may need reiterating or further explaining.

Regarding the issue of where righs arise, there is a more complete statement of the point that I was trying to make in OPAR, Chapter 10 ("Government"), pp. 351-352 (subsection titled "Individual Rights as Absolutes"):

If a man lived on a desert island, there would be no question of defining his proper relationship to others. Even if men interacted on some island but did so at random, without establishing a social system, the issue of rights would be premature. There would not yet be any context for the concept or, therefore, any means of implementing it; there would be no agency to interpret, apply, enforce it. When men do decide to form (or reform) an organized society, however, when they decide to pursue systematically the advantages of living together, then they need the guidance of principle. That is the context in which the principle of rights arises. If your society is to be moral (and therefore practical), it declares, you must begin by recognizing the moral requirements of man in a social context; i.e., you must define the sphere of sovereignty mandated for every individual by the laws of morality. Within this sphere, the individual acts without needing any agreement or approval from others, nor may any others interfere.

Note that in this view, the "moral requirements" of man precede the issue of social interaction and serve as the foundation for defining the "rights" of man in a social context.

There is a high degree of similarity between this view and the political-philosophical views of John Locke as stated in his Second Treatise of Civil Government, the full text of which may be found here. In particular, Chapter II is titled, "Of the State of Nature," subdivided into Sections 4 through 15.

While Objectivism overwhelmingly holds Locke's conception of individual rights in very high regard, Objectivism doesn't necessarily endorse everything that Locke wrote, particularly in some of the details and subtleties. Objectivism holds a similar view toward the American Declaration of Independence, in the way the Declaration references the idea of a Creator but actually emphasizes man's nature as such, treating the latter in a more Aristotelian manner (A is A, it is what it is). Locke's approach was closely similar and was a major inspiration for America's founders.

In reading Objectivist formulatins, one must be careful to separate what the Objectivist formulations actually say from assumptions that may be brought in from non-Objectivist sources. For example, if anything in the OPAR excerpt above is seen to be in conflict with what Locke wrote, remember that the topic of discussion in this forum is Objectivist philosophy, not necessarily Lockean (except by way of historical context and/or contrast).

On the specific issue of the moral justification of punishment and/or retribution as well as merely immediate self-defense and restitution (when possible), note that Locke held essentially the same view as Objectivism, namely, man has that right, even in a Lockean "state of nature." Locke explains his own view of the moral justification, but the Objectivist view, as I understand it, is simpler and more direct. Punishment and/or retribution are forms of physical force. They are retaliatory forms if used in a retaliatory manner, i.e., directed against the initiation of physical force and against those who initiate it. Man is morally entitled to use physical force in retaliation against those who initiate its use. That's it. Objectivism does not attempt to presecrbe which specific forms of retaliatory physical force are appropriate or inappropriate under what specific conditions and situations. Objectivism merely upholds the broad principle of retaliatiatory force in general in response to initiation of force. (Others may already have done the additional work of applying Objectivist philosophical principles to specific, concrete cases. My focus here is on Objectivist philosophy per se, since the question appears to be attempting to raise a broad concern about the moral status of any kind of criminal punishment.)

The questioner also asks why man "loses rights" when he violates the rights of others. I see it as a case of being subjected to retaliatory force. Retaliatory physical force inherently curtails one's freedom of action in a social context, i.e., one's rights. Morally, however, one deserves it if one has initiated physical force against others. One deserves to be subjected to retaliatory phhysical force, and curtailment of one's freedoms in one form or another is inherent in physical force of any kind. Legal scholars and philosophers of law can investigate in more detail which specific form of retaliatory physical force is most objectively commensurate with the original initiation (and with provably probable future initiations) in specific kinds of situations; Objectivism merely provides the broad principles -- the distinction between initiation of physical force and retaliation, and the moral status of each -- leaving it to other sciences to apply those principles to specific, concrete cases or categories of cases.

answered Sep 24 '11 at 03:02

Ideas%20for%20Life's gravatar image

Ideas for Life ♦

edited Sep 26 '11 at 00:45

You are right--my initial question was too broad. However, my narrower question remains: why is punishment a justifiable response?

You say "Man has rights only insofar as he chooses to live by reason, or at least respects others' freedom to do so.... A criminal who chooses to abandon reason and infringe the freedom of action of others, paralyzing their efforts to live rationally, thereby loses whatever rights he would have had if he had chosen to live by reason."

This view (that criminals lose their rights) does answer my question, but it begs the question of why the criminal loses rights.

(Sep 24 '11 at 16:05) ericmaughan43 ♦ ericmaughan43's gravatar image

You say that "Man has rights only insofar as he chooses to live by reason." Is that correct? I agree that reason is the source of rights, but isn't it man's capacity for reason that gives rise to rights, not any particular man's actual exercise of reason. Surely we could not treat an irrational, but peaceful, person (say a religious nut) as if they had no rights merely because they have renounced reason. I could see an argument that rights can only be claimed by those who respect them, but I am not sure if that is what you are arguing. Would you please elaborate for me?

(Sep 24 '11 at 16:14) ericmaughan43 ♦ ericmaughan43's gravatar image

As for your second point about where rights arise, I must disagree. You DO have rights in the state of nature--they are moral principles that delineate your freedom of action in a social context. Society is necessary for rights, but society is not necessarily government. If you do not have rights prior to government then what is all this talk of delegating rights to the government about? Indeed the standard STATIST premise is that rights can ONLY be those privileges that a state grants to you, and that they have no moral meaning.

(Sep 24 '11 at 16:25) ericmaughan43 ♦ ericmaughan43's gravatar image

Now, it is true that prior to government one's rights are not as efficacious as we would like. We hope that others will be moral and respect our rights, and if they don't we enjoy what Locke referred to as the "executive power" which allowed us to enforce our rights ourselves. There are obvious problems associated with enforcing one's rights oneself, however, which is precisely why we form a government--to better facilitate the protection of rights. But these rights the government better secures existed before; that they were more precarious did not make them unreal.

(Sep 24 '11 at 16:35) ericmaughan43 ♦ ericmaughan43's gravatar image

Eric, I think your confusion come from not clearly picturing the process of forming the free society. The dialogue at that time needs to identify the appropriate conduct to sustain life, hence the elaboration of what are rights and what actions must be restricted. In nature there are no rights, just consequences. Rights are the recognition that certain actions are not to be punished and in nature, reality is the final arbitrator. Rights come into play when we decide that each individual fighting for life is worse than restricting the initiation of force - forming a peaceful society.

(Sep 25 '11 at 13:35) garret seinen garret%20seinen's gravatar image
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When someone commits a crime against you -- say assault as in your example -- simply stopping the crime and receiving retribution is not enough. Why? Because we know from past experience that a person who assaults once is very likely to do so again. Which means that they remain a threat, both to you and possibly to others as well. In Objectivism, force or a credible threat of force warrant using force in response.

The primary goal of incarceration, therefore, should be to eliminate that threat; perhaps by just having enough time pass that their desire to use force against you fades away; perhaps by rehabilitation of some kind; perhaps by internalizing the consequences that follow from their actions. The goal is not to hurt the criminal, or to make them suffer somehow; it's to protect against them using force on you or others.

I also don't buy the idea that prison sentence terms act as a deterrent to others. My view is that morality is the only effective deterrent. In that sense, I'm in favor of relatively light sentencing.

BTW, the formal legal definition of "assault" does not involve hitting or physical contact; just a credible threat (physical or verbal). "Battery" is the legal term for someone actually hitting you.

answered Oct 30 '11 at 05:18

Rick's gravatar image

Rick ♦

Thanks Rick. So it seems to me you are advocating incapacitation and specific deterrence (but not general deterrence) as the rationales for punishment--is that correct? (specific deterrence = deterring the specific criminal's future actions by giving him an incentive to reappraise and change his moral character; general deterrence = incentivising others' actions)

(Oct 30 '11 at 10:52) ericmaughan43 ♦ ericmaughan43's gravatar image

Also, you are correct with respect to the common law tort definitions of assault and battery. However, some jurisdictions' criminal codes conflate the two and call what would be a common law battery "assault." Further, in common parlance people generally refer to what would be a common law battery as "assault." So I figured I would use the word most people would most readily associate with what I was describing. As for those who knew better (like yourself), the context made it clear what I meant. I give you props, however, for the catch. :-)

(Oct 30 '11 at 10:55) ericmaughan43 ♦ ericmaughan43's gravatar image

I think specific deterrence, as you called it, has a much higher chance of being effective, and also has a reasonable grounding in morality -- whereas the effectiveness and morality of general deterrence is dubious. So yes, I guess I agree with your re-statement of my view.

(Oct 30 '11 at 17:36) Rick ♦ Rick's gravatar image
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Asked: Sep 22 '11 at 15:34

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Last updated: Oct 30 '11 at 17:36