Abstract
Those who commit crime on a grand scale, numbering their victims in the thousands, seem to pose a special problem both for consequentialist and for non-consequentialist theories of punishment, a problem the International Criminal Court makes practical. This paper argues that at least one non-consequentialist theory of punishment, the fairness theory, can provide a justification of punishment for great crimes. It does so by dividing the question into two parts, the one of proportion which it answers directly, and the other of ‘anchoring points’ which it assigns to a broader theory of enforcement (which may have a non-consequentialist or consequentialist version).
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Notes
Though truth commissions differ from each other a good deal, what they share is an emphasis on producing an accurate record of great public wrongs rather than on punishing wrongdoers. Generally, they trade amnesty for confession, seeking reconciliation and compensation rather than strict justice. http://en.wikipedia.org/wiki/ Truth_commission (July 1, 2007).
Hart (1968), esp. pp. 3–13 (distinguishing definition of punishment, general justifying aim, and principles of distribution).
Here’s my (rough) calculation: (30 years imprisonment × 365 days/year imprisonment) = 10,950 days’ imprisonment. 10,950 days imprisonment/9,990 murders = 1.1 days’ imprisonment/murder.
Though Taurek’s critics seem to have been forgotten, there were some. See, for example, Kavka (1979); Sanders (1988). While I put my statement of what might be worrisome about what the ICC is doing in strictly numerical terms (as if two murders were, all else equal, twice as bad as one), all I need claim is that, all else equal, committing n + 1 murders is significantly worse than committing n murders for any arbitrarily chosen number of murders. There is no number of murders after which the next murder is morally insignificant.
I do not suppose that war criminals are undeterrable. While anyone the ICC finds guilty is (as a matter of fact) unlikely to have been deterred from any crime, he is not therefore undeterrable. The capacity to be turned away from crime by fear of penalties may well be intact. Circumstances (the special pressures that led to the crime, the failure to think about penalties, the relative mildness of the likely penalty, and even the habit of killing) may explain why he was not deterred (just as we can explain why salt, though soluble in water, will not dissolve in water already saturated with salt).
For an extended discussion of these points (with many suitable quotations from earlier critics of bringing war crimes within the bounds of criminal justice, see Fichtelberg (2006). My thanks to John Kleinig for calling my attention to this discussion—which begins with a quotation from a letter that Hannah Arendt wrote more than half a century ago, while considering the Nuremberg trials, ‘this guilt, in contrast of all criminal guilt, oversteps and shatters all legal systems’.
For an extended discussion of this point, see Davis (2009).
Small changes have been made to the text to clarify the original. Scheid (1990, p. 169, n. 51) notes the resemblance between this procedure and that found in Kleinig (1973, Chap. 7). Braithwaite and Pettit (1990, p.150) do the same. Nonetheless, the two procedures should not be confused. Like that of Mabbott (1939, esp. p. 162), my procedure is designed for justified criminal punishment (and close relatives), not (as Kleinig's is) for any morally justified punishment. Some details, especially ranking by type, are new (and—as I have argued elsewhere—important).
Because many who read these three characteristics may suppose that I have ‘slipped into consequentialism’, it is worth noting that the consequences involved are neither actual nor probable but follow directly from the concepts involved. The term ‘consequences’ is ambiguous, but historically the consequences that consequentialists have been (primarily) concerned with are actual (contingent) consequences or probable consequences (as in expected utility). Everyone, including the most austere Kantian, has accepted logical consequences. I say more about this in Davis 2009.
We are, of course, now assuming the voluntary form of the ‘principle of fairness’. The non-voluntary form (‘Obey the rules of any morally permissible cooperative practice in which you participate’), the more controversial, is the one relevant to legal systems (and to our main argument here). So, I should say that I have no doubt that it is as much a moral rule as the voluntary form. For those with doubts, see Davis (1987) and Arneson (1982).
Why not explain the moral wrongness in question as resulting from deception rather than cheating? The answer is that deception as such is not wrong in chess. As long as one obeys the rules of chess, there is nothing wrong with deception, for example, sacrificing a piece (that is, giving the appearance of losing it by mistake) in order to entice an opponent into a trap. Cheating may presuppose deception, but it need not (for example, when the person cheated is not in position to prevent the cheating even if aware of it). On the other hand, agreement (among the relevant parties) makes cheating impossible. So, for example, if we agree to play chess according to rules allowing you (but not me) to castle out of check (as one sometimes does with a weak player), there is no cheating (and nothing morally wrong) in playing that way (though what we are playing is now ‘chess’ only in something less than the full sense).
Generally, violation of criminal (rather than civil) law. See, for example, the essays collected in von Hirsch et al. (2000). But even when the focus includes all social rules, the means of enforcement still focus on potential rule violators. See, for example, the classic article by Calabresi and Melamed (1972).
This is what I have elsewhere called ‘the method of common sense’. See Davis 1996, pp. 13–21.
Dahmer was murdered in prison by a fellow inmate in 1994 (2 years after beginning his sentence). One way to read this event is as showing the superiority of the death penalty as a means of maintaining respect for law; another way (the one I prefer) is as showing the need for better administration of Wisconsin’s prisons (for example, better supervision of inmates and more care in sorting them).
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Acknowledgments
My thanks to Steve Kershnar, John Kleinig, and Don Scheid for helpful comments on one or another early draft of this paper—as well as to participants in the Humanities Department Colloquium, IIT, September 14, 2007, and to participants in ‘Punishing War Criminals—New Ethical Challenges’, a conference sponsored by the Danish Research Group for the Ethics of Punishment, Copenhagen, Denmark, September 21-22, 2007.
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Davis, M. What Punishment for the Murder of 10,000?. Res Publica 16, 101–118 (2010). https://doi.org/10.1007/s11158-010-9109-z
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DOI: https://doi.org/10.1007/s11158-010-9109-z