I posted a few times last year on Michael Moore’s classic Placing Blame (see here, here, and here). There’s just one more part of the book I’d like to make note of, particularly as it relates to my post here on teaching theory in Criminal Law. Here’s how I set up the problem:
In my last couple of Criminal Law classes, I’ve taken a little time out from doctrine to discuss punishment theory. As is conventionally done in Criminal Law, I’ve contrasted utilitarian and retributive theories. Doing this makes me a little nervous, because I’m afraid students will get the wrong idea that punishment theory is useless. Here’s the image I have: a student stuck at the crossroads of punishment theory — one road heading towards utilitarianism and the other towards retributivism — feeling utterly incapable of choosing which path to take. ”The Kantians and Benthamites have been arguing over the foundations of moral theory for two centuries,” I imagine the student thinking, “so how can I hope to resolve the debate?”
Indeed, this is pretty much where I was when I started teaching Criminal Law — stuck at the crossroads.
What I have since come to appreciate, and what I now tell students, is that the choice of which path to take is much less important than first appears — these are twisting paths that run closely parallel to one another about as often as they head in opposite directions.
I went on in the post to describe a variety of ways to reconcile retributive and utilitarian approaches. In this regard, Moore makes what I find to be a helpful distinction between agent-relative (deontological) and agent-neutral (consequential) retributivism, and presents the concept of “threshold deontology.”
Here’s what Moore says:
A consequentialist about morality believes that the rightness of an action is exclusively a function of the goodness of the consequences that the action produces; a deontologist about morality believes that the rightness of an action is (sometimes at least) a function of the action’s conformity with “agent-relative” norms, norms that are addressed to each person individually and that are not concerned with maximizing conformity to such norms by oneself or others on other occasions.
The distinction becomes clearer if we apply it to retributivism. Take Kant’s old example of the last murderer in an island society that is about to disband and leave the island. A retributivist believes that the murderer should be punished because he deserves it, even though no other good will thereby be achieved. The guilty, in other words, must be punished. If one construes this retributivist norm as an agent-relative norm, then the members of Kant’s island society are obligated to punish the last murderer even if by doing so other guilty murderers elsewhere will go unpunished. (We might imagine, for example, that if we punish the murderer, he will not testify against other murderers who will thereby escape conviction and punishment.) Alternatively, if one construes this retributivist norm as a norm describing a state of affairs that is to be maximized, then the members of Kant’s island society should not punish the last murderer but should rather maximize the punishment of the guilty by their actions. The “deontological” or “agent-relative” retributivist regards the act of punishing the guilty as categorically demanded on each occasion, considered separately; the “consequentialist” or “agent-neutral” retributivist regards the state of the guilty receiving punishment as a good state to be maximized even when this means that some guilty persons are intentionally allowed to escape punishment. (155-56)
I think retributivism gets a bad name because of the absolutism of the agent-relative version, which I don’t think resonates with our real-life moral intuitions. The notion that we have a categorical duty to punish without regard to negative consequences, no matter how extreme, calls to mind Bentham’s famous line about “nonsense on stilts.”
Yet, it also seems out of touch with reality to suggest that we do or should undertake a thorough assessment of the positive and negative consequences every time before we act. It seems to me that we normally rely on simple rules of thumb to assess the rightness of an act — rules that superficially seem to have an absolutist character (“lying is bad”), but that in practice can be rebutted based on consequences (“except when the lie is made to a Gestappo officer to protect the Jews hiding in the attic”).
Here’s where I find appeal in Moore’s concept of the threshold deontologist, that is, a person who “refuses to violate a categorical norm of morality until not doing so produces sufficient bad consequences as to pass some threshold — then, he will override such categorical norms.” (158 n.13) This reminds me of the dual-process theory of moral judgment, which I discussed here.
If people really do tend to be theshold deontologists in their own lives, I think that is a good reason for using this approach in our more systematic efforts at moral reasoning, as when we make (or teach) criminal law.
