Anger and Forgiveness

by Martha C. Nussbaum

  ers.”35 Surely to the extent that we want to rely on intuitions— and I agree

  with Rawls in thinking that we rely on these only as part of an overall

  network of principles, theories, and judgments— the judgments on which

  we rely ought to be “considered judgments,” that is, judgments that are

  the fruit of some testing and reflection, not the ones that are maximally

  designed to bypass reflection. Moore denies that his theory is emotion-

  based, but what he means by that is that it is not an expressive theory that

  justifies punishment by its ability to vent emotions. That’s true. But at

  the level of justification, the view does appear to be emotion- based, and

  based on just those emotions that we are subjecting to critical scrutiny.

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  Indeed I think Moore’s theory may also be inconsistent. He announces

  that his form of retributivism does not rely on the lex talionis. But then he uses in justification intuitions that probably rely on exactly that. At least he has not attempted to show that there is a class of reliable intuitions

  supporting his theory that do not at some level rely on the lex talionis, or what I have called “magical thinking.”

  As to Moore’s abstract contention that wrongdoing is sufficient for

  punishment,36 don’t we have to ask, “Why?” And doesn’t he owe us

  something in return? He tries to avoid the “why” question, appealing

  to the intrinsic appeal of his view, but it does appear that we can’t do

  away with that question altogether. When a child does wrong, we don’t

  just punish away without thinking of consequences. Indeed we typi-

  cally think of consequences above all: we want a child who will become

  a moral and rational adult, and we choose strategies reasonably aimed

  at that end. We seek out expert theories, and try to figure out what treat-

  ment best produces good results. If some type of punishment is shown to

  be useful, we might choose that. But we do it because it is a good route to

  our goal. A parent who sent a child to her room “because she deserves it,”

  and who had nothing more to say about whether this was a good way to

  produce adult virtue, would not be my favorite type of parent. The revo-

  lution in the punishment of children that has taken place since the time

  of Dr. Spock is built on clinical and empirical data: harsh treatment does

  not work. If parents did not care about what works, but simply thought

  wrongdoing sufficient for punishment, they would not care about the

  data, and change would not have occurred. Does Moore think that par-

  ents are wrong to care about what works? (Of course I think that even if

  harsh punishments did work one should not use them, but at least at that

  point we would have a real debate.)

  Moore will certainly reject this example, on the grounds that children

  are not fully rational, and therefore not fully responsible moral agents.

  I doubt this, particularly when we think about older children and young

  adults who are our children. And I have already argued in chapter 4 that

  retribution is a bad way to deal with adults who are our children. But

  let us in fairness to Moore think instead about friends one of whom has

  wronged the other, but who remain in an ongoing relationship. (And

  remember that Moore thinks moral desert sufficient for retribution.)

  Surely, as I’ve argued in chapter 4, piling on punishment just on grounds

  of desert is not an unproblematic or obvious strategy. It seems to me that

  anyone who deals with such a situation merely in terms of backward-

  looking blame, without focusing a major part of her attention on the

  future, is likely to lead a lonely and unhappy life. In human relations

  generally, we are always wrong to neglect the future; it is the only thing

  we can change, and it is in effect the only life we have.

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  On the whole, I greatly prefer Morris’s overall approach to justifica-

  tion. Although I do not think it succeeds in this particular instance, it is

  at least built upon principles for which he offers appealing arguments.

  Moore’s bare retributivism seems to latch onto some powerful emotions,

  but those emotions are precisely the ones whose rationality and useful-

  ness we are calling into question.

  It is instructive to ponder two more nuanced interventions in the

  retributivism debate that one might dub “borderline retributivism”: those

  of R. A. Duff and Dan Markel.37 The “core retributivist thought,” accord-

  ing to Duff, is that “what gives criminal punishment its meaning and the

  core of its normative justification is its relationship, not to any contin-

  gent future benefits that it might bring, but to the past crime for which

  it is imposed” (3). In terms of my argument, this is a bad starting point,

  both because it focuses on punishment to the exclusion of other strate-

  gies for addressing crime and because it refuses to focus at all on the

  future. Nonetheless, as Duff elaborates the nature of the backward focus

  he has in mind, the proposal has attractive features: the core idea is that

  of a “calling to account,” and its significance is political, expressing core political values. All this I can agree with, and I have already said that it is important to focus on the past to just this extent: it is right and important that the truth about the past be publicly acknowledged. Capabilities are

  intrinsic goods, so a society that aims to protect them for all should take

  note of violations: an intrinsic damage to social welfare has occurred. But

  for the most part the reasons for such a focus will be forward- looking: we

  are trying to build a society in which capabilities are protected, so we

  need to note the problems in our way. Moreover, I’ve argued that a decent

  society needs to engender bonds of trust and related moral sentiments

  among citizens, and citizens will not trust political institutions if they

  feel that political principles are just words on paper, proclaiming the

  importance of certain capabilities while in practice their violation is taken lightly.

  In the article in question, Duff does not say why this “calling to

  account” is socially important. But in his earlier book Punishment,

  Communication, and Community, Duff says something very like what I

  have just said: If law is to mean what it says, “it is committed to censur-

  ing those who engage in such conduct.”38 To remain silent would be to

  go back on its commitment to its own values. Duff does not explicitly

  allude to trust here, but it is surely part of the picture. (But if that is so, then the proposal is inconsistent, to the extent that it officially denies forward orientation but justifies itself in terms of such forward- looking ele-

  ments.) Duff also seems right to insist that, while the civil law is focused

  on damages, the criminal law is focused on wrongdoing. I agree. And

  I also welcome Duff’s insistence that the criminal law should not view

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  itself as the agent of the moral law: such moralistic views are not appro-

  priate to law in a pluralistic liberal society (14). However, all these prom-

  ising moves appear to be undermined when Duff abruptly shifts course,


  stating that the “core retributivist thought” is that “the guilty deserve to

  suffer (something), and that a proper aim for the criminal law is to subject

  them to that suffering” (16). Here he appears to embrace the moralism

  he has previously rejected, and he endorses a different view of the core

  of retributivism from the one with which he began (and a view that is

  much more familiar and less “borderline”). Still, the process of “calling

  to account,” as Duff describes it, is actually quite forward- looking and

  reform- oriented, no matter what he says: “By imposing a burdensome

  punishment, we hope to make it harder for the offender to ignore the

  message, to keep his attention focused on what he has done, and to pro-

  vide a structure within which he can face up to his wrongdoing and on

  what he must do to avoid its repetition” (17). In an important footnote

  (45 p.n. 21), he insists again that the purpose of punishment is “to affect

  his future conduct.”

  On balance, then, Duff’s proposal has promising elements, but in its

  attempt to set itself squarely in the retributivist tradition it sells those

  elements short.

  Markel has basically the view embodied in that last extract from

  Duff: the retributivism he favors is a “confrontation” with the offender.

  It should focus on communication and not on suffering, its aim should

  be to affect future conduct, and its focus should be the wrongful act of a

  person, rather than the person him- or herself. Like Duff, he emphasizes

  that this conception of punishment is political, and not part of a com-

  prehensive ethical or metaphysical doctrine. He therefore explicitly gives

  up all views that rest on notions of metaphysical balance or cosmic fit-

  tingness. He nonetheless insists that punishment must be “proportional”

  to the severity of the offense, apparently because he believes that only

  that carefully calibrated severity accurately communicates the perceived

  magnitude of the offense.

  It seems to me that Markel has more or less abandoned retributivism,

  in favor of a forward- looking theory that focuses on the reform of the

  offender.39 If that is his goal, he certainly ought to be more interested in

  the empirics than he seems to be. Does punishment actually produce

  acknowledgment and reform, or does it more often produce hardened

  offenders? How might a system that is still a type of punishment really

  contrive to communicate a message that would be useful to reform? (This

  is Braithwaite’s question, and I think Markel really ought to become a

  Braithwaitean.) Are there not lots of other variables that are pertinent to

  whether an offender repeats the offense— such as skills training, employ-

  ment opportunities, and education? At one point Markel does note that

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  subsidized drug and alcohol treatment, and skills training, might reduce

  crime (59), but he says that the difference between these programs and

  punishment is that they ought to be open to all people, not only those

  who have offended (59). It’s not at all clear, though, that punishment of

  the traditional sort is the only program particularly suited to criminal

  offenders that we could devise. (Perhaps criminal offenders need specific

  types of counseling and therapy, as Braithwaite plausibly argues.) Nor

  is it clear why the fact that a certain sort of program is good for every-

  one is taken to show that it is not the best way of addressing criminal

  offenders. So Markel is just guessing when he asserts that the most effec-

  tive way of reforming offenders is through punishments calibrated to

  exhibit “proportional severity.” It seems implausible to me— although it

  would certainly be an improvement if punishments really did this, rather

  than exhibiting over- the- top severity for such victimless crimes as drug

  offenses.

  What is especially interesting about these two proposals, which pre-

  sent themselves as nuanced forms of retributivism, is the inexorable pull

  of the future. Rather than engage in the type of cosmic balance thinking

  I have rejected, these two theorists turn to communication and reform—

  all the while maintaining that they are still in the retributivist camp.

  Much the same can be said of the family of views dubbed “expressive

  retributivism”— of which Duff, indeed, is standardly classified as a lead-

  ing exemplar, although, because of the complexity of his view, I have

  given it separate treatment. These views combine the claim that certain

  crimes are serious wrongs that ought to be publicly acknowledged as

  such with the claim, so to speak, that “talk is cheap”— that only hard

  treatment properly expresses society’s extremely negative evaluation of

  these crimes and, by the same token, the value society attaches to human

  life and safety.40 Now I have already agreed with the first claim, and my

  own Millian form of consequentialism can admit it, whereas other types

  of welfarism might not. But surely the first claim cannot be meant as

  purely backward- looking: these are things that society commits itself to

  protecting in an ongoing way. To say, “This thing that occurred is very

  bad” has a point beyond cheap talk only to the extent that it reinforces

  commitment and determination to protect human life and safety going

  forward. So, the claim may be partly retrospective, but it is at least partly prospective.

  But then the claim that only hard treatment properly expresses the

  severity of society’s negative judgment needs prospective empirical eval-

  uation. Very likely just letting violent offenders go free is not a good strategy for protecting human life; we can all agree on that. But surely using

  the methods that empirical study shows to be best at protecting human

  life would be the best way for society to show that it takes the problem of

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  crime seriously. It’s just not serious to indulge in fantasies of proportion-

  ality: indeed that seems to me a lot of “cheap talk.” Instead, let’s really

  study the problem and see what works. And of course, back to our ear-

  lier point, this means thinking not just about the deterrent effect of pun-

  ishment ex post; it also means spending money on education, nutrition, and other ex ante strategies. The idea that many people are hardwired to offend and are deterred only by fear of something extremely unpleasant

  is common, but utterly implausible. Only serious social investment really

  shows that a society takes crime seriously— seriously enough not just to

  throw people into brutal and degrading conditions, but seriously enough

  to spend money where it will really do good going forward. We might

  call this the expressive theory of social welfare spending.41

  Indeed, one of the best accounts of the expressive theory (which does

  not present itself as a form of retributivism), namely Jean Hampton’s

  “The Moral Education Theory of Punishment,” insists that the promo-

  tion of social welfare is a substantial part of what justifies punishment.

  She then adds that an important part of its function is the way in which

  it can “tea
ch both wrongdoers and the public at large the moral reasons

  for choosing not to perform an offense.”42 She thus combines my emphasis on public acknowledgment with an interest in reforming offenders going

  forward. She appears to be open to empirical evidence concerning how

  those goals might best be pursued.43

  Public expression of political values is particularly important when

  those values have not been generally acknowledged. Thus, in cases

  ranging from sexual harassment in the workplace to fraud in banking,

  the greater the disregard and arrogance the conduct exhibits, the more

  important it becomes to make a public statement affirming the fact that

  we take this conduct to be very wrongful. In such contexts attaching an

  unpleasant penalty to the conduct may well be essential for both specific

  and, especially, for general deterrence. The idea of “teaching someone

  a lesson” gets real traction in such cases, and is a reasonable prospect.

  More important, the penalty educates the society about the conduct,

  which they might unreflectively have approved. However, one should

  not assume even in such cases that people are eager to commit bad acts

  the minute they get a chance, and are deterred only through fear. In the

  case of sexual harassment, education and public discussion have done

  a great deal to make the harmfulness of this conduct evident. To pursue

  penalties without also pursuing such education would be as foolish as to

  punish elevator builders who cause harm, while neglecting to regulate

  elevators ex ante.

  Let us now turn to the other side of the “punishment” debate. Socrates

  insisted that the state must never do wrong. Do we have an account of

  why punishments, even those that are both humane and forward- looking,

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  are not wrongs inflicted on people? It’s clearly not enough to say, “Well,

  X asked for it,” since we have rejected the payback idea. And it is also

  not enough to say, “Social welfare requires that we use X for our own

  ends,” since we have said that the rule of law requires equal respect for

  human dignity, and using someone as a mere means runs afoul of that

  idea. Reformists will surely press these objections.

  Some of the familiar swipes against consequentialist theories of pun-