Retributive Justice and Free Will

credits to WD Fyfe for the image

“Justice is the means by which established injustices are sanctioned” (France, 1901).

This statement from Anatole France is an apt reflection of the basic philosophical foundations of retributive justice. Under the custodial model of retribution, those who have been proven guilty would be receiving just punishment for their deeds, and the people who have been victimized and the social structure which may have been directly or indirectly tainted or offended, will be given the opportunity to restore what has been lost from them – not only through consolation of some sorts, but through the knowledge that the perpetrator of the crime committed against them would be paying his/ her just retribution – an injustice that has already been sanctioned.

Perhaps, it is easy to advocate for a less firm approach to correction, particularly in the utilitarian aspects of rehabilitation, deterrence and incapacitation, when one would use the already tried-and-tested principle of humaneness. Yet for the people who have been oppressed and hurt by criminal acts, such approaches would not be comprehensible. How could justice be adequately served if the person that has been victimized does not receive that which has been denied of him/ her by his/ her offender?

Plenty may disagree with me in this regard, particularly if my aforementioned statements would be assumed as nothing but a mere euphemism for vengeance. Indeed, the society would benefit more if the system of correction would indeed strive to “correct” what has been wrong on the person – a rehabilitative form of intervention, founded on the assumptions of the medical model. The criminal would have to go through some series of behavior modification procedures, and after a few months or years be pronounced as “rehabilitated” or “cured.” But would it really do so?

I believe that retributive justice rests on the basic assumption of human beings as capable of making their own judgments and decisions – creations of sound mind and sound body. It would indeed violate this very principle to think that the individual’s decisions – when later on proved to be detrimental not only to himself/ herself but to the other people and the society as well, would be perceived as somebody who warrants “professional intervention;” somebody afflicted with an illness that needs to be treated and a condition that needs to be rehabilitated. While it would be morally repugnant to assume that a person, who perceive himself/ herself as superior on the merit of his/ her expertise or educational background could dictate whether a person who is subject to him/ her is dysfunctional and hence needed to be treated, it would also be abhorrent to regard the criminals’ wrong decisions and actions as products of their own moral or personal inferiority and “illness” as a human being. Do we not all agree that each was created equal – gifted with the capacity for liberty and freewill? That it is also because of this gift why human beings enter into a social contract with others and created a government that could enforce the necessary control – in order to ensure that in the pursuit of liberty and freewill, the common good would prevail. Thus, the process of retribution would not be a form of vengeance – basically because it would not be administered by the offended party, but a neutral system that is created for this very purpose.

In the very process of retributive justice, we are assured that the innocent would not be punished (Bradley, 2003) for isn’t retribution about getting what one deserves? In order to fairly exercise retribution, the criminal justice system must be above reproach because like in any other exercise, the framework would be futile and dysfunctional if it would not be observed properly. Retributive justice likewise carries the essence of fair play – of the society’s striving for the balance of individual autonomy and the common good: tip one scale and chaos would result. When a person violates the laws of the land, s/he may use the guise of personal autonomy. Yet, s/he could never escape the contract which s/he violated. S/he is regarded as a person with inherent worth and dignity and in the philosophy of retributive justice; s/he would not be treated as a helpless person in need of guidance and assistance from those who know more. Rather, s/he would be treated as a person who is in full command of his/ her own actions.

Retributive justice does not contradict the Christian edict. For is it not Christ himself, who said that the people would be judged on the merit of his/ her actions, on the scale for which s/he weighed others? If the nation’s criminal justice system would be using a scale that is fair and impartial, what does it fear of future retribution? Like Bradley (2003), I believe that the central aim of punishment is retribution; to redress a grievance using the appropriate means. Deterrence, rehabilitation and incapacitation were only secondary aims – which I believe would naturally follow once a person gains full cognizance of the extent of his/ her mistakes.  Retributive justice could in fact, appease the offended side, so it would not have to employ means that could only worsen the situation and inflict further danger in our society. Retributive justice could in fact, prevent the aggrieved to commit revenge – because they know that the appropriate justice has been served.

References

Bradley, Gerard V. (2003). “Retribution: The Central Aim of Punishment.” Harvard Journal of Law and Public Policy. 01934872. Vol. 27, Issue 1.

Cole, George F. & Smith, Christopher. (2007). The American System of Criminal Justice. 11th edition.Belmont: Thomson Learning Inc.

France, Anatole (February 2008). Crainquebille.United States of America: Wildside Press

Tan, Nicholas. (22 November 2008). “Rehabilitation vs. Retribution.” International Debate

Education Association. Accessed 27 January 2010 from www.idebate.org

The Terrible Question of Posterity: A Philosophical Inquiry

“The human heart refuses to believe in a universe without purpose.” This word from philosopher Immanuel Kant (1781) is exactly the logical framework of argument against Heilbroner’s (1975) assumption pertaining to the irrationality of the question on posterity and its possible contributions to those who live in the present times. In spite of the complete knowledge of mortality, human beings seek to answer for questions on truth and on deconstructing it – dedicating their life’s work into discovering cures for illnesses, explaining the unexplainable and ultimately finding the purpose of their existence. This they do, even if they were not completely sure whether the legacy that they would be living behind would be of substantial use to future generations. Yet, ultimately this assumption becomes the rational explanation for their actions.

Plenty may argue that this argument is largely egotistical and does not at all rest upon the principle of universalism, which Immanuel Kant himself have expounded. Indeed, an “egotistical” explanation does not rest upon a universally applicable maxim – a quality that is so unlike morality, as he would later on explore. Nonetheless, I believe that the aforementioned explanations are not at all egotistical in quality and character, and after all rests upon the ideals of universalism – that is if we would be adapting the Kantian method of analysis and critique. I believe that caring for posterity is a rational act, not just on the principles of altruism, but on the basis of each person’s pursuit of the purpose of his/ her existence.

The arguments for and against concern for posterity are anchored on the very principles of environmental conservation. Those interests affected by strict environmental policies may indeed cry for the significance of such conservation – in the guise of arguments against posterity. For a few, this is morally offending. For human beings to exploit the resources that they have without a bit of uncaring for future generations may indeed be an indication of how modern comfort and luxuries provide an avenue for loose morals.

Nonetheless, I believe that worse than this behavior is when the people who called themselves environmental advocates and activists, no longer possess the scruples to point out the rational explanation needed in order to justify policies that aim to protect the environment, even if – as Heilbroner (1975) would say such justification would provide an essential commitment to life’s continuance.

Within the framework of biology for instance, Darwin would undeniably argue that each human being is not “more special” than the animals that populated the earth. What sets human beings apart from other animals – let us assume for example, the dinosaurs and the mammoths, is their capacity to seek for ways in order to continue living. The human race is somehow different because of its capacity to triumph against overwhelming adversities brought by natural disasters and climate changes and fight its long battle against extinction. This may also be true among other animals or insects – particularly if one would take into account the Komodo dragons of Indonesia, or even the proverbial household pests such as rats and cockroaches. In the biological context, one would definitely agree that each being is gifted with the capacity to combat extinction – and with that capacity comes the desire to protect one’s future generation against encroachment and/ or annihilation. What purpose then, is fulfilled by the countless soldiers who have fought and died for their respective battles for liberty? Surely, India’s Mahatma Gandhi could easily have left India, together with his sons to a place where he would not have to face the bitter oppression of the British forces. Yet, they have chosen to remain and fight in their own ways; and their decision to do so did not only come from their desire to protect their family and their country, but to ensure that the future generations would no longer face the abhorrence of subjugation and discrimination that they have experienced. This is one rational act, and its rationality is not just based upon the qualities of patriotism or nationalistic fervor, but on the longing to provide a conceivably better world for posterity. It is rather unfortunate that the promotion of the interests for the future becomes a purely rational act – that is commonly agreed upon, only at a time of political and social upheaval. The point here is perhaps for people to agree that not only under extreme circumstances; the world is also faced with environmental upheavals, characterized by the people’s refusal to acknowledge its moral and rational obligation to the future. By acknowledging that one’s obligations to future generations do not only stem from a purely altruistic virtue but on the innate biological necessity for self-preservation and continuance, I believe that the “terrible question” posed by Heilbroner (1975) in his essay would merit numerous rational answers.

Heilbroner further argued that we do not know if religion will win out. Though I believe that where religion may fail to provide a rational explanation faith will, let us first temporarily abandon certain theological assumptions in this argument by using the Darwinian framework. On strict biological terms, we are provided with a vital fact: that our existence as human beings are owed from the natural process of evolution and are guided with the principles of survival, similar with that of other animals as I have previously discussed. Part of such principles of survival is cooperation – primarily because we were not gifted with the exceptional abilities of speed and strength and rather must find such survival necessities by virtue of our “being with others.” Because we are “cooperating,” we enter into a social contract and establish systems that could allow the fulfillment of our basic liberties and regulate them in order to ensure that in the exercise of these liberties, we would not be violating the rights of others. The government’s primary purpose – among others that were later included, is to provide the necessary social control so that people could live accordingly and survive for many years; that the existence of the governments until the present times is an indication of the people’s cooperation-seeking behavior.

Why is cooperation important in the seeking of rational explanation for the “terrible question” posed by Heilbroner? Hardin (1981) illustrated examples of situations where cooperation becomes even more prominent than survival: when in 1921, the refugees on Volga refused to eat the edible seeds, saying that the seeds were “for the future,” when during the siege of Leningrad, several residents dies of exposure and starvation even if a large quantity of edible seeds were obtainable. What rational explanation could be said of these incidents? This rational explanation may be partly owed through “cooperation,” and more importantly the need to provide for the future generations. Though distant it may seem, the people, in their moral principles know that the posterity would be made up – not of “creatures” that are alien to us, but fundamentally, of beings that came from us. The atrocities committed by the present at the expense of the future are morally incomprehensible because we are dooming the future generations – the direct products of our own undoing and sacrifices.

Indeed, one would further argue that we are ignorant of their future needs and ideas, and we do not know the values that they uphold, even the moral principles that they would adopt. Yet, the extent of our ignorance is only similar to the extent of the ignorance possessed by the people from the past toward us. If in this ignorance, they have chosen to continue their wars against each other and the exploitation of the environment through the slapdash continuance of industrialization, what good will that be left for us? This corresponds to our obligation to the future generations – not only in the successful passing of genes, but also in ensuring that our present behavior does not get in their way in the future.

Indeed, the human heart refuses to believe in a universe without a purpose (Kant, 1781). What purpose could be more rational than the perpetuation of human race? What could be more rational than the establishment of ways and measures in order to ensure that the posterity would be getting its just share of the universe just as we did today? As human beings, we are capable of foresight, planning, anticipation and pro-action. Would it not be rational to use these capabilities to avoid the further destruction of the environment? For indeed David Hume had once said, the ends we seek are to be found in empirical observations of our moral sentiments and a rational account of the circumstances in which these sentiments blossom and bear fruit. In these words and in the arguments that I have stated, I believe that “terrible question” has been rationally if not sufficiently answered.

References

Dator, Jim. 19 July 1995. “What has Posterity Ever Done for Me?” International Space University. Stockholm Summer Session. Accessed from http://www.futures.hawaii.edu on 28 January 2010

Hardin, Garrett. 1981. “Who Cares for Posterity?” Responsibilities to Future Generations, p. 226. Buffalo: Prometheus Books

Heilbroner, Robert. 1975. “What has Posterity Ever Done for Me?” New York Times Company: 321-324

Kant, Immanuel. 1781. “Critique of Pure Reason.” Dover Edition, 2003. New York: Dover Publication

Partridge, Ernest. “Posterity and the Strains of Commitment.” The Online Gadfly. Accessed from http://www.gadfly.igc.org