Chapter 3

Laws and sanctions

One of the problems in the existence of any society is that, though being in the society may very well be to the long-term advantage of the member, people don't always look to their long-term advantage. But since, in the short term, performing the cooperative act is precisely to the disadvantage of the one who is expected to do it, then it would be folly to rely on (a) the fact that he happens to be feeling generous at the time, or (b) the fact that he will at the time be aware enough of his long-term advantage that it will supersede his short-term disadvantage.

If society were based on love, then of course the generous impulses of the members would be enough, because if all the members loved each other (i.e. were willing to subordinate themselves to the others), then when one member didn't feel like doing something, (a) no one would mind, and (b) someone else who happened to feel generous would take over the task this time. Such a society is theoretically possible, but it would be very haphazard and unstructured, depending on consensus on what is to get done, and then simply hoping that the tasks will be carried out; and because consensus would be required for defining the tasks, then tasks which would be beneficial and even necessary for the members, given their common goal, but which not everyone agreed on, might very well not get done.

In fact, there have been any number of attempts over the centuries to establish societies (other than marriage, which I will discuss shortly) like this, but they don't really last long, because necessary tasks in fact don't get done, and even those tasks which do get accomplished increasingly fall on that very small segment of the society which is either unreservedly generous or so meek that they can't refuse hints. These people, who become outrageously exploited by the others, either quit or (as I saw once myself) go crazy; and the society falls apart.⁽¹⁾

There is, however, one society that functions on the basis of love alone: marriage; but that is because (a) it is between only two people, (b) there is a very strong bonding force in the sexual attraction and the resulting children, and (c) they already love each other before they form the society, and so either is willing to be exploited by the other from the start. But we will see more of this when we consider marriage; I just mention it here to dispel the notion that societies with no laws can't exist at all, and to indicate to the utopians that any complex society that didn't have laws and sanctions would in effect be a marriage among all the members. If you think that that would work, you are utopian indeed.

So we can take it that in any ordinary society, there must be some way to motivate the members to perform the tasks that are their assigned roles in the society. (There must be some way to assign the roles to definite people too, of course, but we'll take that up next.)

We can assume that the people are basically willing to carry out the tasks assigned them, and so most of the time, they will be carried out as expected. The problem comes in the fact that "most of the time" is not enough; they have to be carried out practically all the time, or the society is more nuisance than help to the members, because they can't count on things getting done for them. Imagine what would happen in a car pool if all you knew is that "most of the time" the assigned person would be by to pick you up. You might be willing to put up with not being picked up once or twice in the course of a year; but if it began to happen once a month, you'd say, "To hell with it; I'll drive myself and keep from getting an ulcer."

How then does the society guarantee that, with rare exceptions, each member will do something that is to his short-term disadvantage? Obviously, by creating a situation in which it becomes to his short-term advantage to do it.

But rewarding each member sufficiently to offset the short-term disadvantage in carrying out his role would bankrupt the society in short order; and so that way is out. (Besides, that's the economic relation, not the cooperative one. In effect, each week the person assigned would be hiring himself out as a paid chauffeur for the others.)

The only alternative, then, is to create a situation in which it is more disadvantageous not to perform the assigned task than to perform it. This will work, because (a) this penalty will not have to be applied most of the time, because people will spontaneously do what they are expected most of the time, whereas the reward would have to be given for each act; (b) because the threat of greater short-term disadvantage will tend to deter all but the most irrational shirkings of societal duty, which means that the task will be performed "practically all" the time and can be counted on by the members; and (c) since it will now only be very rare that shirking will occur, the expense of carrying out the threat will be minimal to the society.

A sanction is a threat of punishment attached to an assigned task in a society, making it more disadvantageous not to perform the task than to perform it.

Punishment is some harm that the society will do to the person if he does not perform the task assigned.

A Command is an assignment, with a sanction attached, of a task to be performed.

A law is an assignment, with a sanction attached, of a role to a certain status in the society.

Authority is the status in society which has the right to issue commands and laws.

To obey is to perform a task commanded.

Traditionally, the term "sanction" is applied to both rewards and punishments; but since sanctions are supposed to motivate the people in a society to obey the laws, they must in practice be threats. Note that the whole theory of laws and their punishments was developed before the economic relationship came to light with Locke; and as I see it, rewards belong to the economic and not to the social relationship.

Note also that "to sanction" something sometimes means "to give tacit approval" to it. This is not the sense intended here. Rather than "sanctioning" an act, because it has this different meaning, it is better to speak about "imposing a sanction" on the act--which doesn't suffer from the ambiguity.

Commands differ from bare threats because they occur within the context of a society, where it is presumed, as I said, that the person commanded is basically willing to obey, and needs the extra help of the sanction to get him over the times when his short-term interest would be apt to be too much for him. Whenever a command or a law is issued, it is always hoped that the punishment will never have to be carried out, and the threat of doing so will be enough to ensure that everyone obeys.

Laws are simply commands that attach to a given status in the society, and so apply to anyone in that status. For instance, laws against murder and so on apply to anyone in the status of citizen; laws dealing with driving a car apply to anyone who has the status of a driver; and so on. St. Thomas' definition of law, "an ordering of reason for the common good promulgated by the one who has the care of the community," is something that I would have certain minor problems with.

In the first place, as I said, the self-determining nature of people precludes giving "common good" the positive sense it had in medieval times, where it was decided by those in authority what was "good for" the members, who then proceeded to command the members to do it. Secondly, I make a distinction between the society and the community. When the two are separate, as in a college, the authority cannot issue any laws to the members outside the smaller segment which is the society other than regulations which prevent violations of rights. Other "regulations" such as arrangement of how to pay tuition and so on are really contractual arrangements between the college and each person who hires its services. Thirdly, the notion of "promulgation" (making the law known) is in the definition of law here, because it is assumed to be an "ordering of reason," in the sense that the authority and the member are to "become of one mind" with respect to the common good, and of course the idea of the common good has to get from the authority's mind to that of the member. I think it is a little simpler, now that we have the sociological concepts of status and role, and now that Locke has made his contribution to social thought, to define laws as I did above.

As to the definition of obedience, you obey a command or a law when you do what you are told whether you do so because you are afraid of incurring the sanction or not; once again, we are taking the sociological point of view which concerns itself with the act itself and not the motivation for the act.

But I want to point out that, subjectively speaking, you are free of the command or law as a command if you would perform the act even if it were not commanded. You would also be free of it if you were in a state where you were indifferent to the sanction; but in this latter state, you would be either ignorant or immoral, because it is some harm to yourself, by which you are worse off than you are now; and while the harm may not be great, you would, in choosing the act, choose your own detriment.

But if you are in the car pool for the reason I mentioned above, that you care for the others enough to actively want to drive them to work, then when you are assigned the task of driving them, you then willingly and even joyfully obey without having the threat of being kicked out of the pool even enter your head. Hence, the command is not a command, for you; it is more on the order of permission to do what you would like to do.

Even a person like this, however, occasionally uses the sanction to motivate himself to do what he basically wants to do. And this is the proper attitude of the member of society, because that, basically, is what the sanction is for: to be a help for the willing rather than a threat for the recalcitrant. There is no need to obey grudgingly and to grumble at sanctions; and the person who focuses on sanctions is only looking at the short term rather than the long-term gain he has in belonging to the society.⁽²⁾

I don't think it's really useful to call the moral obligation a "law." The idea of it, as the "natural law," was that God was "promulgating" what he wanted us to do through our nature; and he had heaven and hell as a sanction to motivate obedience (remember, at that time, rewards were considered sanctions). But the eternal consequences of the act are simply the natural consequences of it (or rather, the act itself with its goal carried into eternal consciousness), and are not really a threat attached to it. This concept of God's "issuing a law" for us and threatening punishment falsifies the relationship between God and his creatures; he's not going to become angry and spank us if we disobey his laws; he is simply warning us that if we seek our own frustration, we will find it.

The idea of a "law" of nature is derived from the concept of law, as the Scholastics said, by the fact that when laws are issued, those in the status in question do the same thing; and when natural objects act in a constant way, objects of a given type are doing the same thing, just as if they were obeying a law. Personally, I think that the analogy is pretty strained and not intellectually terribly meaningful; but since the "laws" of physics and so on are so entrenched in our vocabulary, there's no point in trying to fight it pedantically by trying to substitute some such term as "constancies."

Now then, what characteristics does a sanction have in order to be able to do its job of motivating people to obey when they are inclined not to?

First, it must be sufficient, though just barely so. That is, the disadvantage from disobeying must be seen by "the ordinary person" to be greater than the disadvantage from obeying. Since disadvantages are "badnesses," however, and badness depends on freely chosen standards, as I said in Chapter 10 of Section 5 of the first part 1.5.10, among other places, the sanction will necessarily appear as more or less of a disadvantage to different people.

From this it follows that the sanction must be such that "practically all" the people in the status in question will in fact see it as a disadvantage--or, obviously, they will find it more disadvantageous to obey, and the law will not be obeyed "practically all the time." Hence, society must experiment to see how light it can make the punishment and still have all the people obeying the law practically all the time; and if the disobedience becomes widespread, this can be an indication that the sanction was not severe enough.

If the sanction is too light, of course, only the form of law exists; the law itself doesn't have any real existence. In Cincinnati some twenty years ago, there was a law saying all retail stores except things like drugstores had to close on Sunday; but one year one of the department stores opened on Sunday during the Christmas season. It was charged and fined, of course; but it did such huge business that it just stayed open, merrily paying the meager fine; and of course, the other stores found that they couldn't afford not to open too, or they would lose too much of their business to this criminal competitor. Within two years, the nonexistent "law" was repealed.

But the reason the sanction must be barely sufficient to insure obedience is that the only way sanctions can be morally enforced is, as I will say shortly, by using the Principle of the Double Effect; and if the sanction is more severe than necessary, the fifth rule is violated. Obviously, it's going to be tricky to find the punishment that is severe enough and yet not unjust.

The second requisite of the sanction is that it be appropriate, in the sense that it punishes non-performance of just what was commanded. It's hard to give a perfectly accurate term to this second characteristic, because every term seems to have other possible meanings that don't quite fit. The Scholastic term for it is "just," which makes it sound as if it is saying that the sanction must not be excessive; but of course sanctions will work if they are excessive, while they won't work if you tell somebody to do something and punish him for not doing something else.

The idea behind this second requisite is that there shouldn't be "loopholes" by which you can avoid doing what you are commanded and get away with it. To give an example, if there is a law that you have to get your car inspected and have an inspection sticker on it, but everyone knows that the only place where the police check inspection stickers is in the downtown area, then what is being commanded sub rosa is to stay away from downtown. In spite of the fact that the members are basically willing to obey the law, they aren't eager to do more than they have to do (because they're basically free individuals, not slaves of the society); and so all you can expect is that they'll do the minimum that will circumvent the punishment, not that they'll stick even to the clear intent of the law. So a misplaced sanction defeats the law.

Thirdly--and this is not in the traditional Scholastic notion of sanction explicitly, but I think it is important enough to be made a special characteristic--the sanction must be inevitable. That is "practically all the time" you violate the law, you can count on being caught and paying the penalty. To the extent that the sanction doesn't follow the law a significant percentage of the time, to that extent it loses sufficiency (which is why the Scholastics didn't make it a special characteristic), because the odds against your being punished get higher, and the advantage of disobeying greater. As an example of this, notice how people slow down when they see a police car beside the highway. Very many law-abiding citizens travel a few miles above the speed limit, knowing that they are not really driving dangerously, and the police are looking for those going more than ten miles an hour too fast.

When laws are not enforced, in fact, they do not function as laws. As I wrote the original version of this, the silly 55 mile an hour speed limit was lifted from the interstate highways (built for 70 miles an hour) in Ohio, outside city areas--and most people stay pretty close to the new 65 mile an hour limit. But the law in Massachusetts was still 55; and they prided themselves on it, and on the severe fines for violating it. But in those years, in visiting my family, I found that I had to drive 65 in the right (slow) lane, because otherwise I was holding up traffic; and I was frequently passed by police cars which weren't chasing anyone, but just going the "normal" speed. Query: Which state had the law?

In cases where a given law has not been enforced for a considerable time (a matter of several years), and has therefore been ignored, the law is said to "fall into desuetude," and no longer can legally be enforced. What is behind this legal concept of "desuetude" is that, since people are basically self-determining, then their freedom to act is not to be restricted without necessity; and if the society has gotten by without trying to see that the law was obeyed for a number of years, then there is no reason to impose it on the people any longer. There are, then, "laws" on the books in most places that have no force as law. These have the name of law, but lack the reality; and it would be morally wrong to try to use them against a "violator" even in those countries where it might be legal to do so (i.e. in those countries which make no provision for laws falling into desuetude).

I might remark here that a law doesn't fall into desuetude if there have been unsuccessful attempts to enforce it, even if those attempts are half-hearted. The Massachusetts speed laws were still valid laws at the time I wrote this, because every now and then there was a crackdown. They are bad laws, because at the times when the authorities are looking the other way, you can get away with breaking them; but they are still laws.

Similarly with property rights. If you have a corner lot, and people cut across it, and you make no attempt for years to stop them, then the path across your lot can become a public thoroughfare, and you might find that you can't fence your lot in. If, however, you complain periodically about the trespass, then you retain your property rights. This also works with nations. Argentina still claims rights to the Malvinas Islands (Falklands to you) which were seized by England decades ago; but Argentina has kept complaining right up to the present about the seizure, and so the islands have not (morally speaking) passed into England's hands.

But to return to sanctions, in general a lesser sanction that is more inevitable has a greater motivating force than a severer sanction that is less likely to be imposed. If people play the lottery thinking that they "just might" win, think of how prone they will be to break laws that they've seen other people break and get away with.

It can also be said that capricious enforcement of laws is unjust. If the punishment is carried out sometimes and not at other times, the member of the society doesn't connect the sanction with the violation of the law, but with the state of mind of the enforcer at the moment. For instance, if a coach suspends one of his players for not showing up at practice, and then ignores several others, and then suspends a fifth, the players are going to think that the ones who were suspended were suspended because they were Black, or because the coach had a headache, not because they broke the rule. In that sense, "mercy" or "clemency" except either (a) in very rare instances, or (b) in cases where it is clear to everyone what the extenuating circumstances are, is not perceived as mercy but as favoritism; and this tends to destroy the force of the law, which is directed at everyone in the status.

A few more words about laws before we get into how punishment can morally be carried out.

Since the society exists for the sake of the members and not the other way round, and since the members are basically self-determining beings, who have their own lives to live, but are willing to cooperate for the common goal of the society; and finally since laws with their sanctions restrict people's freedom, it follows that

Conclusion 7: Every society must try to have the fewest possible laws: only those necessary to achieve its common goal.

When laws proliferate, the people's freedoms are unnecessarily restricted; and since the laws add sanctions to the simple assignment of a duty, this means that the members are threatened with harm if they don't obey. Hence, if the authorities issue laws which are simply "nice," even if they are related to the common goal (i.e. laws which will aid in accomplishing the goal, but are not necessary for it), then they are acting as if the be-all and end-all of the members is the common goal of the society, not their own individual goals first and foremost.

This is often something hard to see by the organizers of a society; since they very often have as one of their primary personal goals whatever it is that they get others around them to cooperate for, and since (because it is their own personal goal) they knock themselves out for the common goal, they don't understand that, while others members may be willing to work for this goal, it is not, and doesn't have to be, the highest priority in the scheme of their lives. So the gung-ho leaders of the society start passing laws to make the drones do some work around here, and get this show on the road, and all that sort of thing.

But that is a totalitarian notion, and in effect makes slaves of the members of the society--and discontented slaves at that. Members who join societies and find that the least little thing they do is regulated tend to un-join themselves very quickly. In the gym where I work out, there was a person in charge of the weight room who was passionate about weight lifting and "his" room; so we found that we were not to have our bags in the room while we worked out, we had to bring towels to lay on the vinyl of the Nautilus machines not to sweat them up, we had to bring in a little card that he took and filed as we worked out (in full sight of him), we had to sign a little paper every time we worked out that the gym wasn't responsible for muscles we tore, and so on. "His" room was neat after a while--because it was increasingly empty. He no longer is in charge of it.

Of course, laws that have no relation to the common goal of the society and no relation to seeing to it that other members' rights are not violated, are laws in name but not in fact. Any attempt to enforce them is unjust, because the members agree to cooperate for the common goal, not for any other reason.

Conclusion 8: Laws unrelated to the common goal are laws in name only, and in general should not be obeyed. They may be obeyed when the Double Effect applies.⁽³⁾

The reason these laws should not be obeyed is, of course, that they contradict the basis of the society's having the power to issue laws in the first place. It is then making laws simply because it has the means of forcing people to do what it wants; and this is coercion, as I defined it in Chapter 5 of Section 1 of this part 6.1.5, and is not consistent with the society as a whole. That is, since people have the right to live their lives as self-determining, not as determined by other people, then this is a violation of the rights of the members, and as such must, if possible, be prevented from happening.

But it can easily be that disobeying such a law is only going to bring its punishment on you, without anything happening except that you have stood up for principle. Thus, if there is no hope of changing the law by the disobedience, and if all that is going to happen is the harm from the punishment, then you may use the Double Effect and obey.

Two more remarks before we get into the morality of punishment. First, a law must be promulgated in order to be a law.

Promulgation is a formal act making it possible for the people to understand (a) what they must do, and (b) that they must do it.

Obviously, if the society wants the members (or the members of a given status) to do something, it has to let them know--and it has to let them know in such a way that they know that this is a command and not just a "wouldn't it be nice if" sort of statement on the part of the people who are in charge of making laws.

The primary requisite of promulgation is that it be unambiguous. One of the reasons that legal language is so hard to understand, interestingly enough, is precisely this requirement. Since the law is telling people what they have to do "or else," then the people, as I said, have a right to do the minimum required of them; and so they can do anything that the law doesn't forbid them to do. But this means that you have to spell out very exactly (even at the expense of clarity) what you want them to do.

Thus, for instance, if you don't want people defacing roadside rest areas, then you can't simply say, "Don't deface this property," because some graffiti artist is apt to come along with his spray can and say, "I'm not defacing, I'm beautifying." So what "defacing" is supposed to mean in this context has to be made more precise by pointing out the kinds of acts that it is intended to forbid. Lawyers frequently use as a defense that the law is "vague," and as worded would cover many acts that were clearly not the intent of the legislators; but the point is if it doesn't say you can't do a given thing, then you can do it.

Now of course, this is within reason, and need not take into account a reading of the words that is utterly at variance with the way words are generally understood. The reason for this, of course, is that words are imperfect expressions of mental acts, as I said in Chapter 5 of Section 3 of the third part 3.3.5, and so there is almost bound to be some interpretation of the actual command that has nothing to do with what any rational legislator would have intended. I remember one instance when I was going to Fordham University, which at the time required Seniors to be dressed "in tie and academic robe" (a short little black capelike sort of thing) when in the dining room. One student showed up in his robe and tie, but was shirtless (yes, he did wear pants; this was back in the dark ages). He didn't, as I remember, get away with it.

It is the authority's duty to promulgate the law properly: that is, in such a way that "the normal member" can know what it is. If the authority doesn't do this, then it is obvious that he is not serious about seeing to it that the law is obeyed; and since if the law is not properly promulgated, it is the authority, not the member, who is at fault if "violations" occur, and the member need not obey (even if he knows what the authority wants), because the law, having contradicted itself, is not a law. We saw a version of this (in Chapter 6 of Section 1 of the fifth part 5.1.6) by analogy with the moral obligation in discussing the reason why it is morally legitimate to take the more lenient interpretation of even the moral obligation when experts can't agree on whether there is one or not.

For instance, if there is a special speed limit on an expressway because of repairs, say, and the signs announcing this are posted on the road but before a certain entrance ramp and not after it, then no one need obey that limit between that ramp and the next sign indicating it--because anyone entering from that ramp couldn't back up to see the sign, and therefore could not know about the limit, and so couldn't be expected to obey the law until he got to the next sign. What this means is that the law in that place was not properly promulgated, and therefore no one has to obey.

There is a famous case of this in history. The people of Voltaire's time hated the Jesuits so much that they pressured the Pope into suppressing the Order; and to make sure that the Jesuits didn't exert counter-pressure, they persuaded the Pope not to proclaim the suppression from the balcony of St. Peter's urbi et orbi ("to the city and the world") but to deliver it to each Bishop, where it was to be read simultaneously in each diocese through the world. Catherine the Great of White Russia got wind, however, of what was afoot, and since she had a Jesuit school in her country which she didn't want closed, she forbade the Bishop to read the proclamation; which meant that in White Russia, the Order was not suppressed. When other ex-Jesuits from around the world heard this, they went to Russia and rejoined the Order, which rose from the ashes.

At any rate,

Conclusion 9: An improperly promulgated law is not a law, and need not be "obeyed."

Secondly, what about what are called "unwritten laws": the kind of thing that are the essence of the "social pressure" I referred to in Chapter 3 of Section 1 of the fifth part 5.1.3?

These aren't really laws of a society, but rather the informal expectations that members of a community have about the conduct of other members of the community. I mentioned in that place what can happen to you if you have a beard and other men are clean-shaven, or if you are wearing a suit and everyone else is in jeans. There's no law against these things, but by going against what people expect of you, you make it difficult for them to predict what is going to happen if they interact with you; and people don't like surprises.

And the upshot of this is that, while there is no actual sanction imposed on the deviant behavior, the fact that most people disapprove of it (or even don't know how to deal with it) will make it difficult to be with them, because they are bound to express their discomfort in unpredictable ways. This has, in many cases, the same effect as a sanction; but it lacks the reality of a sanction because you don't really know what is going to happen to you, and what the "law" actually commands.

Thus, there are many problems in coping with these "laws." In the first place, since they are just what the people as a whole happen to think, they are by no means clearly promulgated, and you have to find out often by trial and error what you are supposed to be doing (even asking, sometimes, is taboo). Secondly, you don't know how seriously the people take a deviation from expectations, and what they are going to do to you; and the "penalty" can range anywhere from a raised eyebrow and change of the subject to tarring and feathering.

In one sense, there really shouldn't be such expectations from the members of the community; a person should be free to behave just as he pleases as long as there's no law against it. But on the other hand, there is really nothing that can be done about it, because it is inevitable that if people are together in any significant way, they will come to expect certain behavior on the part of each other; and conforming to the expectations of others makes the social aspect of everyone's lives that much easier. So unless the expectations actually do damage to someone (i.e., violate some right he has), then there's nothing really wrong with them. In the case where rights are violated, of course, then laws must be passed to prevent the violation, and education campaigns mounted to change the attitudes of the people. In this way, many of the prejudices against Blacks have been softened in their effect, if not eliminated.

While I am at it, let me give a couple more definitions:

A culture is a community insofar as it has expectations for the conduct of the members.

The culture of a community is the collective mental attitudes and level of understanding of that community.

"Culture" taken absolutely is the set of mental attitudes that characterize the culture of the highest class of people.

I don't think these definitions need elaboration, and so let me finally get to why I think punishments for violations of laws can be carried out.

The problem here is analogous to that of self-defense, which we saw in Chapter 5 of Section 1 of this part 6.1.5; but there is a significant difference. In the discussion on self-defense, I said that the Double Effect failed if you took vengeance on someone for something he already did to you, because you then wanted his harm (violating the fourth rule) and couldn't say, "All I was trying to do was defend myself."

But here, the violation has already occurred, and the damage done by the member to the society has already been done. How then can you do harm to him after the fact without choosing to harm him, thus violating his right? Remember, I said that every sanction necessarily involves some harm, precisely because the potential violator has to be made worse off than he is now for violating the law.

Before Locke, the solution generally was that members didn't really have rights against the society as such, because even if they received their rights from their analogy with God, they did so through the community of which they were members, as I said in the discussion of the history of rights in Chapter 2 of Section 1 of this part 6.1.2. Hence, the authority in the community had the power to do harm to individuals for the sake of the "common good." This was raised to its logical absurdity, of course, by Hobbes, who said that the sovereign could do anything he pleased to anyone, since everyone had handed over all his rights to him in the social contract.

But we've learned a little more of what it means to be a human being since then, and it will no longer wash that individual human beings are absolutely helpless before the power of the society, even if the society thinks it's doing what is for the greatest good of the greatest number. Stalin's purges are not even justified in the Soviet Union nowadays, thank God. So we can assume that individuals have their basic rights against society also, and not just against other individuals--and so they may not be killed, or caged, or enslaved, or tortured, or maimed, and so on. So the notion that society somehow has "a right to express its outrage" at people who do horrible things can't, I think, rationally be sustained. This variation on the "unjust aggressor" theory of self-defense winds up making the society exactly the same as the one it is punishing, if the sanction is barely sufficient (because then it's "an eye for an eye"), and worse if it's more than that. But how can you express your outrage by committing the same outrage? If you maim or imprison someone who has maimed another, aren't you condoning his act by saying that, just because you as a society are bigger than he is, you can get away with the very thing you won't let him get away with? No, that theory, in spite of its attractiveness, is, in my view, morally bankrupt, as is every attempt at vengeance, no matter what its goals might be.⁽⁴⁾

But how do you punish someone if you can't do any of these things to him?

The argument goes this way: First of all, society can't exist if it can't expect cooperative conduct among the members. But cooperation can't be expected unless there are laws with their threats of punishment. But a threat is not a threat when it is known that it won't be carried out.

Therefore, if it is known that society won't carry out its threats, then the laws will tend to be disobeyed when it is to the members' short-term advantage (as it almost always will be) to disobey. But once this happens, the society collapses. This is true for any society. And unless some societies exist, human beings can't live human lives.

Therefore, if human beings are to be able to live human lives, it must be possible for societies to carry out the threatened punishments against violators. But the punishment still is an action which violates some human right of the violator.

That's the effect. What is the cause?

This is what I think it is: The person punishing the violator chooses no harm to the violator, but solely chooses to protect the credibility of the threat so that other people will not be encouraged to violate the law.⁽⁵⁾

Do not mistake me here. The punisher is not really using the punished person as an "example" to show to others, "This is what will happen to you if you break this law!" That would also be immoral, because it would be using his harm as a means to the good effect of having the others obey the law--and the end never justifies the means, even if the end is the preservation of the conditions under which human beings can live human lives. So the "deterrence" theory of punishment has to be a good deal more subtle than it has been expressed up to now in order for it to be morally justified. It isn't the punishment that's the deterrent (or there would be no deterrent until there was an actual violation); it's the threat of punishment that is supposed to deter.

Hence, the attitude on the part of the one punishing is more negative; it is this: "If I don't actually punish this person, then in effect I'm giving permission to everyone else to disobey this law." He is solely protecting the threat as a threat. There is a big difference between this and saying, "If I punish this person, I'll send a signal to others that they shouldn't do things like this." In this latter case, he is using the harm as a way of making a forceful statement of the threat.

But aren't those really still the same thing? No, any more than it's the same thing if I break your arms because I want you not to hit me (and you haven't done anything but call me names so far) and if I break your arms because you've actually begun fighting with me and this is the least harmful way I can make you stop. Beware of thinking that anything that produces a given result is the same as anything else that produces it. This would mean that it is the same thing to fly to Boston from Cincinnati or to drive there; but ask anyone who has made the 16-hour drive if they are the same. Here, in the one case, I would be causing harm as a means to prevent my harm; in the other, I would be blocking harm that was being done to me.

Thus, the violator's going unpunished is what is "sending a signal" to the rest of the people; his getting away with violating the law is telling them, "It's okay not to obey. See, nothing happened to me." And that is the damage to society which must be avoided, using the Double Effect.

That this is not a utopian way of looking at things can be seen from the following examples: First, some years ago, a very prominent player on the Cincinnati Bengals football team was found to have been using drugs, which was against the laws of the League, and the sanction for his violation was permanent suspension. But the team that year was, it seemed, headed for the Super Bowl largely because he was on it; and suspending him meant not only his not being able to play, but the probable destruction of the chances of the Bengals to win the World Championship. But, as the coaches said in the newspapers, "If we don't suspend him, then we might as well be handing out dope to every football star in the country. Even if it means the Super Bowl for us, we can't not suspend him." Again, Pete Rose, the manager of the Cincinnati Reds baseball team, last year was found to have a gambling problem, and was convicted of betting on his own team, something whose sanction is suspension for life. He was suspended, and also sent to prison for lying to the government about his income from gambling--but a great many people everyone sympathize with him. It's just that that kind of thing can't be allowed, and if he got away with it, then others would do what he did.

Let us then take it as established that an unpunished violation is an attack on the sanction of the law and so on the law itself, and therefore on the society, which can't exist without laws.

So we are finally in a position to discuss whether the Double Effect can be applied analogously to the way it was in self-defense to see if society can protect itself against this attack on it.

First of all, the act society takes to defend itself must be morally right except for the effect of the harm that is going to happen to the violator. This will, as with self-defense, almost invariably be the case. Imprisoning someone (i.e. locking him into a room) does no damage until he wants to get out. Even putting him into an electric chair and throwing the switch does no harm in itself; if there is a break in the circuit somewhere, the person does not get killed.

Note, by the way, that these rules apply to any punishment, not just the death penalty. I will discuss the death penalty specifically after going through all of the rules.

Secondly, there is a good effect of punishing the violator; the people do not get the idea that nothing will happen if you violate the law, and so the law will retain its force.

Thirdly, the actual harm done is not the means to the good effect. If, for instance, the violator should die of a heart attack before the sentence can be carried out, the society has still avoided giving the impression that it wasn't serious about the sanction. Even if the violator escapes and so no harm comes to him at all, the society has still kept from saying it doesn't care whether the law is obeyed or not. Hence, the harm does not have to be part of the punisher's choice.

Fourthly, the society must not want the punishment in the sense that the violator "deserves" it. That is, the motive of "getting even" or vengeance must be totally absent from the punishers.⁽⁶⁾ No human being ever deserves harm from anyone, as I have so often said.

This fourth rule is in fact very often violated, it seems, in our present judicial system. I see judges on television saying to criminals, "I'm sending you behind bars for life, because people who do the things you've done are not fit to be in human company. Do you hear me?" Who is he to say that to anyone? No one of us is "fit to be in human company" if you analyze what each of us has done carefully enough. And don't say you are, my friend. You're no Augustine or John of the Cross or Thérèse of Lisieux; and they, who were totally honest about themselves, recognized that they were wretched examples of humanity; and if that's what they are, then how far away are the rest of us?

No, it must always be unfortunate and unwanted that the violator has to be harmed; the attitude toward the filthiest rapist murderer must be the same as toward poor Pete Rose. It's a shame, but it's got to be done; there's no way we can avoid it, short of destroying the whole fabric of society. The only one who has any right to be indignant about the things people do is God Almighty; and he not only isn't indignant, he welcomes the prodigal son with open arms and kills the fatted calf.

Finally, the punishment must be no greater than is necessary to ensure future obedience to the law. What this amounts to is that the punishment must be adjusted to the individual circumstances of the violator so that the threat will be kept as a deterrent to future violations, and yet it will do as little harm to the violator as is consistent with this. There was a case before the Supreme Court about a man who was too insane to stand trial (for murder, I believe), and could probably be rendered competent if he took medicine; but who refused to take it; the question is whether a state can force him to take the medicine so that he can stand trial for his crime. On the assumption that you can tell whether a person is faking insanity or not, then not forcing him to take the medicine is not going to give other people ideas that they can get away with murder; and so nothing is to be gained by trying and punishing him--which means that morally speaking, it may not be done.⁽⁷⁾

It may also be that what serves as a deterrent to one group of people in the society is not sufficient for another group. For instance, a year in prison might be devastating to a middle or upper class citizen, while for a person from the ghetto it could even be a relief. A friend of mine who was doing some carpentry for me once didn't show up one weekend. When I asked him what had happened, he said, "Oh, I beat up on my wife a little and she called the cops; and so I was in the workhouse for three days." "Good heavens!" I said. "How horrible!" "Hey, no big deal," he answered; "anyway, she deserved it." Obviously, a little thing like a weekend in the pokey wasn't sufficient to make him even bat an eye--though of course, there was probably a good deal of bravado in what he was saying.

But this means that

Conclusion 10: In assigning punishment to actual cases, discrimination must be used, so that the least harm will be inflicted consistent with the threat's being maintained for the people who must obey the law.

Yes, you must discriminate; and it is inevitable that Blacks or people in general from the ghetto (who have very little to lose because their lives are so circumscribed already) will need harsher punishments to ensure that "practically all" of them also obey the laws. This is unfortunate, but it is a fact of life, ignored at the peril of the society as a whole.

There is a difficulty here, of course. In our society today, young Black men are viewed by people as a threat--and this attitude of people is not helped by rap groups like 2 Live Crew which extol rape and violence as just "the way Blacks are." Hence, when a young Black man is on trial for a violent crime, it is very likely that a randomly picked jury will be prone to think that he committed it, and that he is one of the ones who must be severely punished or we are going to drown in crime. In fact, of course, young Black men do account for a disproportionate number of the violent crimes committed.

But this means that a person is apt to be more harshly treated simply because he is Black, not because the circumstances of the case warrant it; and judges must bend over backwards to see that this bias of the society is compensated for in sentencing, but that the threat of the sanction is still preserved. It requires a good deal of discretion and wisdom on the part of the judges; but it must be done.

But the point is that you can't simply argue that because there are more Blacks in prison than Whites, then this is vindictive racial bias or hatred. As in most instances of invidious discrimination (as opposed to the discrimination that justice requires), you can't establish it by looking at numbers.

Now then, what about capital punishment? Is it ever the lightest sanction necessary to ensure obedience?

This is one of those issues where people who are otherwise rational tend to go off the deep end. There was a young man who taught criminal justice in my college, and was against capital punishment, "because it doesn't deter." I demurred, and he cited studies showing that it didn't. I pointed out that the "evidence" these studies used was in many cases simply silly (comparing states without capital punishment to neighboring ones that had it--but that didn't enforce it); and I found studies that showed what the flaws were, and that when you factored the corrections into the statistics, capital punishment was shown to be a deterrent. He said, "I'm still against it. I don't care what your studies show." Fair enough; but when I asked why, he said, "Because it doesn't really deter."

But all of that is, in one sense, beside the point. The point is that it must never be reasonable for a person to break the law. The threat of punishment is never going to deter people who are either insane or don't care what happens to them or convinced that they won't get caught or so stupid that they don't connect the act with its consequences. But deterring those people is not necessary to preserve the law; it is still the case that "practically all" people will obey even if they don't; and there is no sanction, no matter how severe, which would deter people like this. So we can leave them out of consideration. Hence, the people who are going to be affected by the threat of punishment will be the rational people who are weighing disadvantages against each other. Will the disadvantage from not obeying the law be outweighed by the sanction? If this would happen with "the ordinary person" who has to obey the law, then he won't obey "practically all the time."

Now then, there are certain acts that not only disrupt the society, but threaten its very existence and the lives of the members as well. Murder is one of these, rape another; but let us take what I think is the most disruptive of all: terrorism, or random slaughter (I exempt from this discussion suicide bombers, since obviously no threat is going to deter them from what they do, since the act itself kills them). Generally, the motive for engaging in terrorist acts is extremely noble, as with the Palestinians who have been displaced from their homeland and have no country now at all, and no hope of moving the Israelis to see that they get one (let us discount vengeance against the Israelis for taking their homes away in the first place; the Palestinians have a legitimate grievance). These people think that the only way to wake up the world to their plight and put pressure on complacent nations to do something about it is to engage in terrorism.

But no one can live a human life if he must go about in fear that he might be bombed for no other reason than that he happens to be in the way of a terrorist making his point. Hence, it is absolutely essential for the survival of society that these acts be reduced to the level where they are so infrequent that the people don't need to be concerned about them any more than they are concerned about tornadoes and earthquakes and other disasters. Current post-war Iraq is a case in point here. As I write this, terrorist acts are occurring daily, making daily life next to impossible because of the fear.

The difficulty with not imposing the death penalty for terrorism is that, as long as the terrorists are alive and in prison, this encourages their comrades to engage in terrorism to force the authorities to release them. This has happened in Iraq, with innocent people kidnaped and beheaded unless the terrorists held in prison are freed, or unless troops are withdrawn from the country. That this tactic works has been amply shown in, for example, the Filipino troops' being withdrawn to save a worker, which was followed by a spate of kidnapings; but in many places where terrorism has been widespread, as in Italy a while back I heard that the average stay in prison after being convicted of terrorist acts is two years--after which the person is very quietly released.

In cases such as this, it becomes advantageous to engage in terrorism. The reasonable terrorist would say to himself, "If I do this, I probably won't get caught; but even if I do get caught, I won't actually be behind bars very long." That kind of thinking must not be allowed to happen.

You might argue that if the society makes sure that terrorists are never released, and it becomes known that no matter what happens, they won't be, this would be enough to discourage terrorist efforts to release them. But of course, (a) that would take at least thirty years to be demonstrated convincingly; (b) in the interim, this would just encourage greater terrorism to see how much pressure could be brought to bear to get people released; and (c) in an open society in which the officials are elected by the people, the pressure to release these people and stop the terrorism by their comrades would be almost guaranteed to be overwhelming.

On the other hand, if the convicted terrorists were summarily executed, they would not be there to be released, and so there would be no point in engaging in terrorism for that reason. Further, if the execution occurred very soon after conviction, it would be seen by potential terrorists that there would be no hope of lightening the sentence (by things like good behavior in prison) as time went on, and so the deterrent would have that much more force. Some might argue that fanatics will engage in terrorism out of vengeance if this punishment is put into practice. But against that is the fact (a) that fanatics who don't care what happens to them can't be affected by deterrents anyway and (b) it has been demonstrated that such people are very, very few. When push comes to shove, even people with very strong convictions are very reluctant to do something and face certain death.⁽⁸⁾

It seems to me, therefore, that at least for terrorism, and quite possibly for other crimes not so obvious (such as murder, or at any rate certain types of murders), a very strong case can be made that the only punishment that deters and does not actually tend to make it rationally probable that the crime will increase is the death penalty.

"But suppose you've convicted the wrong person!" is the cry. Suppose you have; it happens. "If he's dead, how can society ever make it up to him?" It can't. But by the same token, if he's been imprisoned for twenty-five years, how can society make that up to him? Once you've done some damage to a person, there is no way you can undo it; no amount of good you can do him will "make up for" it, because, as I said in Chapter 3 of Section 7 of the fourth part 4.7.3, and in many other places, goodness and badness are not commensurate with each other.

And precisely that is why the damage cannot be chosen in the first place. If you make a mistake, the damage is done and cannot be undone; and it is the sentimentality of those who call themselves "compassionate" and refuse to think that says, "Well, we've convicted you wrongly, but we're letting you go now and giving you all these neat things," and can't understand the wrongly accused criminal when he says, "I don't want these; I want the last twenty-five years of my life back." "Well, what can we do?" say these people; "you're alive, aren't you?" "You call this life?" he asks.

The assumption behind much of the argument against the death penalty is that death is the worst of all evils; but as suicides show, there are obviously many people who think that death is preferable to certain kinds of life; and there are also people like Patrick Henry, who cried, "Give me liberty or give me death!" and John Paul Jones, who regretted that he had but one life to give for his country. Standards for good and bad, as I have said so often, are subjective; and so there is simply no meaning in saying that something like life imprisonment is "objectively less severe" than death. To be cooped up in that hell-hole called a prison until you rot there could very easily be looked upon as death by slow, severe torture.

"Yes, but when we put a man into prison for life, we're not actually killing him. Even if he thinks this is a fate worse than a quick and painless death, we still have no right deliberately to take a human life." Precisely. And we have no right deliberately to coop someone up under the conditions of prison either. We have no right to do any harm deliberately. This argument against the death penalty is logically an argument against any penalty at all. Every penalty is discriminatory, every penalty is irrevocable, and every penalty is a harm that we have no right to impose on another.

No, when the penalty is assigned and when it is carried out, the attitude of the one doing it must be, "There is nothing short of this penalty which is going to avoid an increase in this crime; and so to protect the society and its members, I must attach or impose the penalty, and may God have mercy on the violators." Those who oppose the death penalty "out of respect for life" should be aware that the death penalty is precisely a pro-life act, because it saves--and is solely intended to save--the lives that would be lost by tacitly giving approval to the acts of violence the law is supposed to prevent.

It is not that by killing this criminal you are protecting society from future crimes by him. This may be a side-effect of the act; it is that by not killing him, you are telling people that it is all right to kill (or bomb schools and churches) when the reasons get serious enough. Society must never do that.

And, in fact, I cannot believe that it is a coincidence that since the time when the death penalty was in practice abolished in our country (by removing the penalty or by not carrying out the sentence even when it had been imposed), there has been a marked increase in the crimes that used to carry it. If you say that this is due to other factors, to me you sound like the tobacco companies arguing that there's only a chance correlation between smoking and lung cancer.

As to other cases of the least-severe penalty looked at unsentimentally, it can be said that one thing that people dislike a great deal (and go to great lengths to avoid) is physical pain. But physical pain is in itself merely a sensation, as I said in discussing the problem of evil in Chapter 12 of Section 5 of the first part 1.5.12 and elsewhere, and so is not itself a damage, though we are built so that damage is generally reported by the sensations we call "pain." Still, it is possible to inflict intense pain on someone without actually doing him physical injury.

Given this, it would seem as if in many cases the least damaging penalty which simultaneously would have the greatest deterrent force would be the infliction for a short time of intense pain, such as by flogging or imparting electrical shocks with cattle prods, or something of that nature that I cringe at as I write. This sort of thing is now regarded as "cruel and unusual" punishment, though flogging was once quite common. But it isn't really cruel if no damage is done to the person and he is simply let go, having paid his penalty within fifteen minutes. Within a couple of days (or perhaps even hours), he will have recovered, and can resume his normal life; he will be no worse off than a person who has had a tooth drilled--except for the fact that he will think very hard before he commits the crime again, as will people who hear about what happened to him.

People who commit the crime more than twice afterwards, of course, would have to be put into prison to remove them from society; but I would predict that the danger of recidivism would be enormously lessened with this penalty for most crimes, (a) because of the fear of incurring the penalty again, and (b) because the criminal will not be forced into intimate contact with the worst possible influences and be given the education in crime he gets by being in prison.

I submit that because of our sentimental way of looking at things, we have eschewed the most compassionate way of punishing criminals in favor of penalties that do much greater physical and especially mental damage to the people we are punishing. I don't see any comparison between the damage--the actual damage, now--in removing a person from work, home, family, and friends and placing him in that sewer called a prison, and giving him for five minutes pain so intense that he almost faints; yet I am convinced that the latter would work better as a deterrent.⁽⁹⁾

One final remark about penalties before we move on. There is a sense in which the violator can be said to have "asked for" the penalty, because he chose the crime which had it attached to it. Just as a person who cuts off his hand is asking for the inability to pick up things later on, so the person who commits a crime can't avoid choosing the side-effect of the penalty that goes along with it (always supposing that the Double Effect does not apply, as it does in some cases, as in civil disobedience to protest an unjust law). Therefore, the imposition of the penalty is not unjust, even though, insofar as it is damage, it cannot be chosen by the authority on the grounds that the criminal "deserved" it.

Notes

1. Interestingly, the best instance of a lasting society which is based ultimately on consensus is the Catholic Church. This society as a society consists in the successors to the Master's Twelve Emissaries (the Bishops) and their delegates (the presbyters [i.e. "elders"], commonly called the priests in Catholicism). The rest of the Christians (the "faithful") are the community served by this society. The common goal of the society is twofold: (a) to preserve intact the facts about Jesus' life and teaching, and (b) to try to extend the life of faith to those who don't have it and deepen in in those who do.

2. The reason the Christian is not, as Paul says in Galatians and First Corinthians, bound by any law is that, insofar as he has the Christian attitude of Jesus, who "emptied himself and became obedient, even to death on a cross" and a lack of focus on himself, then (a) no sanction can really touch him, because he doesn't care what happens to him as long as he is doing what his Beloved wishes, and (b) he will obey all laws gladly, and would do so even if they had no sanction attached to them, because he is interested in doing what is best rather than seeking his own gain. The point is that he is no longer under the constraint of the law.

The specifically Christian commandment (Jesus's command at the Last Supper, according to John: "You are to love each other in the same way I have loved you") is a commandment in the sense that it tells people what to do; but it does not have a punishment attached to it to motivate obedience. It couldn't have, because to the extent that you would be motivated by your own greater disadvantage if you didn't love as Jesus loved, you would be "loving as Jesus loved" for a selfish reason, and Jesus's love is absolutely unselfish. So this particular command is to be freely obeyed. Paradoxically, disobedience has a natural effect of cutting you off, once you die, from those you don't love; and so to the extent that you don't love, you isolate yourself for eternity, as I implied in Chapter 4 of Section 4 of the third part 3.4.4.

3. Of course, laws unrelated to the common goal but which enforce the common good must be obeyed, because not to do so violates some right of at least some members.

4. Catholic moralists and Theologians have argued that, since civil society is required by nature (because people can't survive without this particular kind of cooperation), then it is demanded by God. And since authority is necessary for society to exist, then it follows that the authority in society (and hence the power to punish) comes from God. This, of course, is what led to the "divine right of kings" theory, which Hobbes tried to justify philosophically without reference to a god. I would not really disagree with God's being the origin of the authority in society, and of its right to punish.

My quarrel comes in making the logical leap that therefore, society can do what it pleases to individuals as long as it is promoting the "common good," and with the notion of "common good" as something more than the preservation of the rights of the individuals. As human beings, our essence is to be free to do whatever we want with our lives, as long as it does not deprive someone else of his rights. True, the moral obligation constrains us to act within the limits of our human reality; but the "sanction" on the moral obligation is in the next life, not this one, and deals with the choice itself rather than the act (or the act only insofar as it is included in the choice).

So it seems to me that others must regard me as sovereign over my actions, even if I wish deliberately to harm myself; the most they can do is inform me of what I am doing to myself, in case I don't realize that it is harmful. But if they go further and actively try to prevent me from harming myself, then they are violating my reality (as free) in trying to get me to avoid violating my reality. Thus they are doing to me the very thing they want to prevent.

Now of course, no human being (and therefore, no society) has the right to violate the humanity of another human being. Hence, if my self-destructive acts harm someone else in addition to myself, I can be forced by society (or another individual) to stop them; but any attempt to force me to do what is "nice" is to take away my essence as human for the sake of some "good" which is imposed on me and which I did not define for myself. But this rests on the false assumption that "good" is something that is objective, and does not depend on the goals that the individual has chosen for himself.

Thus, society can only impose sanctions to prevent damage, not to promote the "common good" in the sense of what may be beneficial to the society as a whole. You have no right to force free beings to do what is "nice." I hasten to add that there is an exception for children here; they have to learn that "being nice" is a good thing, beneficial to others and themselves too. The point is that when they are adults, they may be "nice" or not as they choose, as long as they do no harm to anyone; but of course, they take the consequences of their actions (which might, e.g., be isolation from others they have annoyed).

5. I should say here that traditional moralists say that the solution lies in the fact that God is the creator of society and authority and this necessity for punishment, and therefore, the violator of the law has no right against society with respect to punishment--because no one has any rights against God. But then why do people who hold this demand that the punishment be the least necessary for the law to keep its force? Well, because a harsher punishment, as not necessary, is inhuman. Precisely; it violates the integrity of the violator, implying that the violator does not lose his humanity by his violation, and so keeps his rights against society. That is why I think the only sound argument for justifying punishment is the Double Effect, and not "righting the wrong" (which is impossible), "restoring order" (which can't really be done either, certainly not by creating another damage--another disorder), and so on.

6. There are those who argue that this "he deserved it" is justice. Since he did harm, he deserves to have harm done to him. But how does harm done to him "right the wrong" he did? It only adds another violation of human nature. Granted, he abused his human nature, but that does not take it away from him; he has it because of his reality, not his actions. "Justice" in this sense could only be the "eye for an eye" justice in which the identical harm the perpetrator committed is done to him; because you can't equate a different kind of harm as "just as much" as the harm that was done. What he "deserves," in the sense of what he has a human right to, is not to have his human nature violated.

7. This should not be taken to be a pronouncement on the actual case, since all I know about it is based on the scanty evidence I have from news reports; and there may be many ramifications about the real situation that would change my view of it. The point is merely that if the person can be unpunished and the sanction still preserved, then the punishment may not morally be carried out.

8. There is some evidence that this is true also of suicide bombers, which may sound strange. But to the extent that what they do accomplishes little except their own death, and to the extent to which such things can be made to be looked on as disgraceful, the volunteers will become fewer and fewer.

9. I once was proposing this in class, and an Iranian student of mine stopped me in the corridor afterwards, and said, "When I was in Teheran, I was sitting on my motorcycle downtown, and I turned my head to look at a woman [This was against the law]. A policeman saw me, and right there, he stripped off my shirt and leaned me over the motorcycle, and whipped me twenty times. It hurt very much." "Did you ever look at a woman in public again?" I asked. "Oh, no!" he cried.

I think a good case can be made that such a law cannot be justified, because it does not prevent any violation of anybody's right (no damage was done by looking); but all I am trying to illustrate by that example is that (a) the deterrent works, and (b) no real harm was done to the student.