Responsibility)

Ken Hanly khanly at mb.sympatico.ca
Tue Jan 25 16:00:11 PST 2000


Rawls' position as I recall is that laws are justified in utilitarian terms but the particular decision of a judge should be based upon the retributive view that people ought to be punished because they are guilty and have broken the law. They should be sentenced according to the law and not on utilitarian grounds. This position gets around the problem utilitarians are supposed to face that their position implies it could be justified to punish the innocent. Two problems at least with this position: i) judges are often allowed latitude in sentencing and may be influenced by utilitarian considerations, and rightly so, in deciding on sentences.ii) retributivists at least would question the view that laws ought to be based solely on utility-ie. as with the typical retributive defence of capital punishment on the basis of dessert not utility. (See Rawls' TWO CONCEPTS OF RULES) JKSCHW at aol.com wrote:


> In a message dated 00-01-24 17:59:41 EST, Jim F writes:
>
> << [I had said that Yoshie's argument that moral theory doesn't make us
> better parallels Posner's attack on moral theory as useless in a recent book.)
>
> Jim: You, yourself have often emphasized that Posner is one of the smartest
> people sitting on the Federal bench today. Are there any special reasons
> for us to be horrified?
>
> No, I often find myself in agreement with Posner. (Not here, though.)
> However, I am an unashamed apologist for bourgeois rights, representative
> democracy, and a market economy.Yoshie, however, might be horrified to find
> herself in such company as Posner.
>
> I had said: > To him and to Yoshie I say that moral theory is
> >supposed to help us understand and evaluate our practices, iuncluding
> >those of criminal justice, and not to make people better.
>
> > Jim asks: Why would anyone bother to concern herself with evaluating
> practices if not to improve them?
>
> Or, as Posner put it to me, What good is moral philosophy, then? Which is
> important, I guess, if you are Posner's sort of pragmatist who insists on the
> cash payoff, to use the William Jamesian commercial metaphor, to any any
> practice. I suppose the answer is, it's no more use than chess or stock car
> racing or musicology or literary criticism
>
> Really truly, the philosophers have only interpreted the world in various
> ways, which is one reason Marx abandoned philosophy at an early age. If you
> want to engage in a scholarly activity that might have that sort of value,
> you could try writing modern history--it's just about the only discipline I
> can think of that has that sort of transpormative interaction with the mind
> of the educated public. Moral philosophy is an indulgence, just a matter of
> getting things right.
>
> I note that Posner, despite his official contempt for such activity, keeps
> writing books on jurisprudence which are about as likely to change the world
> as musicology. It's true that the economics and law movement he helped
> pioneer really has helped change the world by influencing a lot of judges.
> But his The Problems of Jurisprudence or the recent Problematics of Moral and
> Legal Theory are "just" political philosophy.
>
> > Probably no one has ever
> been morally improved simply on the basis of having read
> Kant (or Aristotle or Mill) but all these thinkers as I understand
> them were interested in critically analyzing morality precisely
> in order to improve our practices in this regard among other
> things.
>
> I am not so sure. Aristotle thought that morality can only be taught by
> example and was exemplified in the Man of Sophrosyne, practical wisdom, who
> learned it the way everyone does, by example. Ari attacks the erroneous views
> of philosophers, but his approach is not revisionist. He seeks to explain, in
> the Nichomachean Ethics, why what everyone knows to be good is so.
>
> Kant, too, is not a revisionist. He is out to capture what he thinks everyone
> already agrees upon. He attacks common maxims like It May Be Good In Theory
> But It Won't Work In Practice, or The Supposed Right to Lie From Benevolent
> Motives, but on the grounds that if we reflect on what we know we will
> realize that we already reject these maxims.
>
> Mill has a better claim to be a revisionist, but less so than his dad or
> Bentham, who really _were_ revisionists. Mill, faced with the scary
> implications of a consistent utilitarianism, backs down. Moreover, Mill also
> wrote for a general educated audience in popular terms and also thought, like
> Ari, that real moral progress is achieved by example, successful experiments
> in living--like having a nonmarital relationship with Harriet Taylor.
>
> > Also, I would keep in mind Marx's
> statement in *Theses on Feuerbach* that "the philosophers
> have only interpreted the world. The important thing is to
> change it." One would think that you as a pragmatist would
> be sympathetic to such a view.
>
> Sure, but I doubt that moral philosophy often has that effect. I do think the
> world needs changing, and I try to do my bit. If my writing papers in moral
> philosophy contributes to that, however, it is only in the smallish way of
> keeping a candle lit for radical thought in the field.
>
> [I had distinguished between retributive and distributive justice.]
>
> Well, a lot of philosophers do perceive a linkage between
> distributive and retributive justice. Rawls as I recall in
> his *A Theory of Justice* seemed to treat the latter as
> a species of the former.
>
> He devotes less than a page of TJ to retributive justice, saying: "To think
> of distribitive and retributive justice as converses of each other is
> completely misleading and suggests a different justification of distributive
> shares than the one in fact they have" (section 48, p. 315 of the 1971
> edition).
>
> > And Ted Honderich in various
> writings including his *Conservatism* sees the notions of
> responsibility and desert as underlying both the rationales
> for retribution and for the existence of economic inequalities.
>
> Well, Honderich is a hard determinist who, as someone here pointed out,
> thinks that the incoherence of the notion of responsibility means that
> socailsim is the correct political philosophy. Anyway. H is not a major
> player, in moral philosophy much as I like the Conservatism book.
>
> > As I recall B.F. Skinner
> in his utopian novel *Walden Two* had his alter ego Burris Frazier
> ask the same question of the philosopher, Castle, with the
> implication that such notions [as freedom and responsibility] had done
> little to improve human
> behavior.
>
> However, I think that we are stuck with those notions, as the fate of
> Skinner';s musings on the subject shows. No one has presented a credible
> alternative to living without them.
>
> I would say that retributivist notions of responsibility have played an
> important role in our jurisprudence, not only in getting unhappy support for
> cruel and repressive penal laws, but more happily in notions like the
> presumption of innocence and the panapoly of protections for the accused and
> the convicted.
>
> --jks



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