Imprisonment & lex talonis
I've looked through the discussion of imprisonment
http://shkrobius.livejournal.com/307987.html
and I realized that there is an aspect of it that needs more comment.
As I observed in the post, the Mosaic Law does not regard imprisonment as a persmissible mode of punishment. One can rationalize this rejection in terms of violation of the unalienable right of liberty, as I did it in the post, but there is another consideration. The Mosaic Law is retributive rather than consequentialist.
...Retributivism is the notion that punishment is justified only on the ground that wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of the act. The state of affairs where a wrongdoer suffers punishment is morally better than one where he does not, and is so irrespective of consequences. It is a theory that justifies punishment not because of its good consequences, but solely “because people deserve it.”
I share this view of justice (placing myself in a company of Kant and Hegel, among many others). From this standpoint, imprisonment is wrong on two counts. The first is that this mode of punishment is not paying in kind (unless the crime is kidnapping). The second is that it is delivered piecemeal:
...The implicit assumption pervading punishment theory is that if inflicting a sentence of punishment is justified, then inflicting a constituent part of that punishment must also be justified. But under retributivism, which justifies only punishments that are deserved and proportional to the crime, this assumption is false. Suppose that an offender is convicted of a serious crime in a jurisdiction that has adopted a retributivist punishment scheme and receives a sentence of no less than twenty-years imprisonment (or, alternatively, a sentence ranging from twenty to twenty-five years of imprisonment). Suppose further that under retributivism, (no less than) twenty-years imprisonment is the offender’s proportional and deserved punishment. After serving, say, five years of her sentence, the prisoner objects that she is being unjustly punished: “I understand that I may deserve twenty-years imprisonment as my proportional punishment under retributivism, but what I have received thus far-five-years imprisonment-is neither deserved nor is proportional to the crime I committed. Under retributivism, I should not have to suffer what I do not deserve in order that I may be given what I perhaps do deserve. Since my punishment thus far is, and will continue to be (prior to serving the full twenty years), undeserved, disproportional, and unjustified, then according to retributivism’s own principles, I must immediately be released from prison.”
http://moritzlaw.osu.edu/lawjournal/issues/volume66/number2/christopher.pdf
Outrageous as this claim may seem, the logic is completely solid (read the paper).
...If the (lower limit of a) proportional and deserved punishment for an offender’s crime is X time in prison, then punishment of part of X will necessarily be disproportional, undeserved, and unjustified. Since X cannot be inflicted without first inflicting a part of X, the inability to justify a part of X precludes the ability to justify X as well. As a result, such theories or schemes of punishment are unable to justify the infliction of any temporal term of imprisonment for any offender or offense. Neither the leading theoretical account of punishment nor the consensus approach utilized in sentencing codes and guidelines is able to justify the most important mode of punishment for serious offenses-temporal terms of imprisonment. Without a solution to this difficulty, consequentialist considerations must inform the determination of any lower limit of the degree of punishment for any given offense.
Imprisonment is utilitarian throughout; it cannot be any other way. It is incompatible with retributive justice, on principle. I freely admit that I do not know what mode of punishment can replace imprisonment in the modern world. It is quite possible that penal colonies/transportation are no longer practicable, as I've been told by the commenters. But what's wrong is wrong, and no practical considerations make it right. The idea of locking people up that was produced by this head is wrong.
http://shkrobius.livejournal.com/307987.html
and I realized that there is an aspect of it that needs more comment.
As I observed in the post, the Mosaic Law does not regard imprisonment as a persmissible mode of punishment. One can rationalize this rejection in terms of violation of the unalienable right of liberty, as I did it in the post, but there is another consideration. The Mosaic Law is retributive rather than consequentialist.
...Retributivism is the notion that punishment is justified only on the ground that wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of the act. The state of affairs where a wrongdoer suffers punishment is morally better than one where he does not, and is so irrespective of consequences. It is a theory that justifies punishment not because of its good consequences, but solely “because people deserve it.”
I share this view of justice (placing myself in a company of Kant and Hegel, among many others). From this standpoint, imprisonment is wrong on two counts. The first is that this mode of punishment is not paying in kind (unless the crime is kidnapping). The second is that it is delivered piecemeal:
...The implicit assumption pervading punishment theory is that if inflicting a sentence of punishment is justified, then inflicting a constituent part of that punishment must also be justified. But under retributivism, which justifies only punishments that are deserved and proportional to the crime, this assumption is false. Suppose that an offender is convicted of a serious crime in a jurisdiction that has adopted a retributivist punishment scheme and receives a sentence of no less than twenty-years imprisonment (or, alternatively, a sentence ranging from twenty to twenty-five years of imprisonment). Suppose further that under retributivism, (no less than) twenty-years imprisonment is the offender’s proportional and deserved punishment. After serving, say, five years of her sentence, the prisoner objects that she is being unjustly punished: “I understand that I may deserve twenty-years imprisonment as my proportional punishment under retributivism, but what I have received thus far-five-years imprisonment-is neither deserved nor is proportional to the crime I committed. Under retributivism, I should not have to suffer what I do not deserve in order that I may be given what I perhaps do deserve. Since my punishment thus far is, and will continue to be (prior to serving the full twenty years), undeserved, disproportional, and unjustified, then according to retributivism’s own principles, I must immediately be released from prison.”
http://moritzlaw.osu.edu/lawjournal/issues/volume66/number2/christopher.pdf
Outrageous as this claim may seem, the logic is completely solid (read the paper).
...If the (lower limit of a) proportional and deserved punishment for an offender’s crime is X time in prison, then punishment of part of X will necessarily be disproportional, undeserved, and unjustified. Since X cannot be inflicted without first inflicting a part of X, the inability to justify a part of X precludes the ability to justify X as well. As a result, such theories or schemes of punishment are unable to justify the infliction of any temporal term of imprisonment for any offender or offense. Neither the leading theoretical account of punishment nor the consensus approach utilized in sentencing codes and guidelines is able to justify the most important mode of punishment for serious offenses-temporal terms of imprisonment. Without a solution to this difficulty, consequentialist considerations must inform the determination of any lower limit of the degree of punishment for any given offense.
Imprisonment is utilitarian throughout; it cannot be any other way. It is incompatible with retributive justice, on principle. I freely admit that I do not know what mode of punishment can replace imprisonment in the modern world. It is quite possible that penal colonies/transportation are no longer practicable, as I've been told by the commenters. But what's wrong is wrong, and no practical considerations make it right. The idea of locking people up that was produced by this head is wrong.