from Lawrence, SUNDAY PhiloMadrid meeting at 6:30pm: Punishment: Natural or Cultural

Punishment: Natural or Cultural

Dear Friends,

Our topic for this Sunday is once again: Punishment: is it natural or
cultural?

We discussed this topic way back in February 2011. I am, therefore,
including my essay I wrote for that meeting but of course this should be
an opportunity to visit the topic once again.


Punishment: is it natural or cultural?
In biological animals (systems), who live in social groups, punishment
is a natural phenomenon. However, the type and form of punishment are
the product of culture.

That we, human beings, have also inherited this biological trait is in
no doubt. What is more curious about punishment in human beings is how
the type and form has changed and evolved over time.

Of course, when I say evolved we must keep in mind that evolution does
not happen to a timetable or schedule. Indeed, we do know that evolution
takes place over time, over very long periods of time. Thus, a human
punishment in one society, might not have evolved in another. Or, of
course, a punishment would have been selected out of a society.

A punishment, therefore, might be on its way out and in the process of
being replaced by a different one. My belief is that the more we
developed sophisticated rational and, maybe even, moral societies, the
more a punishment would reflect this new state of affairs. Thus, to use
vulgar language, the more barbaric a society the more barbaric would be
the set of punishments in that society; and vice versa. I would even,
for example say, that capital punishment is a reflection of an immoral
barbaric society. The question is whether abolishing capital punishment
would make society more dangerous. My inkling is that it does not.

An analysis of punishment must address the question of purpose: why do
we resort to punishment? Indeed, we can resort to punishment as a method
to influence and change the behaviour of others. Or, even more common,
to express disapproval.

Answering the question of purpose, we can say that punishment is
something we have inherited from a pure social-biological state, which
has long lost its Raison d'être in a society based on reason and
morality. Punishment, is something that works fine at the biological
dimension and since this is an important part of our existence, it is
something we cannot avoid doing, in the same way we cannot avoid
running, sleeping, breathing and so on. Also punishment might be seen as
another weapon, another tool, to dominate and oppress others.

I am in no doubt that punishment, as a means to change behaviour, is
very inefficient and ineffective. It is so inefficient that I doubt if
punishment was ever intended as a means to change behaviour. I mean
thieves still take other people's property even after this crime has
been punished by death, exile, long prison sentences, and in modern
times prison with probably behaviour counselling. Yet, there are still
thieves out there, at this very minute, taking the property of others.
And if you are not convinced children still misbehave today in the same
way their parents did when they were children.

On the other hand, as a means to change behaviour punishment is not
easily dismissed as I might have suggested. Even, Machiavelli mentions
the usefulness of punishment for the Prince. The difference is probably
a question of time; I mean it is a question of time before a punishment
becomes inefficient or counter productive.

It is therefore, also evident, that changing behaviour and expressing
disapproval are not the same thing. Changing behaviour, at least, has
the lofty objective of changing a person's behaviour maybe even for
their own good, if not the good of society.

But if punishment is to be employed as a means of disapproval, then this
raises some difficult issues. The very first of these issues is this
question: why should I care whether you disapprove or not? And if the
answer is because "I will punish you" then punishment can be reduced to
might is right.

The irony, about punishment is that it is very closely associated with
justice. Now, whatever our opinion about punishment might be, we can all
agree that punishment is something physical, something we manifest in a
physical form. And by this I include psychological type of punishments.

And the irony is this. Justice is something that is based on reason and
rationality; forget for the time being such fancy ideas as theology and
religious beliefs and keep to reality. Justice is something that we
expect in the future -we already know what the past is like- and any
rationale about the future must be based on reason and rationality, if
not morality.

Yet punishment is based, fair and square, on brute force and biological
instinct. And to cap it all, punishment by its very nature looks at the
past. However, what is the status of the idea that punishment is
backward looking, something that we do by looking at the past?

Well, we might easily argue that punishment is backward looking because
the act that gives rise to punishment must first take place. Maybe, but
is it the act that is being punishment or the fact that we know that the
act took place. Thus there can be no punishment until we know about the
act. Indeed this, we might also argue, it what happens: there is an act,
we find out abut it and then we administer the punishment.

Even laws , that are supposed to be the pinnacle of justice, follow this
model. First there must be a act (with or without intention), then the
judicial process and, if found guilty, the punishment is administered.

However, there are some laws to prevent us from doing some acts because
the act itself might be dangerous to others. To distinguish these two
laws, we might have laws based on the linguistic structure of "if you do
x, then y will happen to you" (theft or homicide). The second form of
laws follow the semantic form, "do not do x (because of g), but if you
do y will happen to you" (highway code type of laws, smoking laws).

We can easily see the justification for these type of rules and laws.
There might be a justifiable reason, but more importantly, the
punishment is given to the perpetrator only. Only those that are guilty
of theft go to prison, and only those who drive over 120 kph get fined.
In jurisprudence the principle is generally that a punishment is there
to take away a right of an individual; freedom, reputation, property and
so on.

But there is a type of punishment that is not only controversial in
philosophy but probably equally controversial in jurisprudence. This
punishment takes the form of taking away a right not because the act in
itself in illegal or even immoral, nor because it is an act we have
done, but simply because someone, we don't know who, might do the now
prohibited act, we don't know what or when.

You might have already guessed what I am referring to, for example,
taking a photo of a government building, buying digital recording media,
taking water on a plane or buying chewing gum. Taking photos in public
of a public place is one of those rights which is well established in
most democratic societies. But now, usually based in the excuse of
terrorism or personal privacy, this right is slowly being eroded on the
belief that some terrorist might take some photo of some building that
might be use in some act sometime in the future.

The frightening thing about all this is not that a terrorist might take
a photo that will be used to in a criminal act, but rather the belief
that taking away the right to take a photo in public from 45, 65, 300
million people it will stop a terrorist from taking said photo.
Thankfully the present British government is changing these policies and
laws hopefully by others that will enable 65 million people to exercise
their right and maybe at the same time help catch a terrorist or a criminal.

The same with digital storage media (tax for illegal copying), chewing
gum (clean roads), taking water on a plane (could be an inflammable
liquid used by terrorists). Consider taking water on a place, apart from
being an immoral act to waste water, it ought to be a crime as well,
testing for water can be very easily done; make the person drink some!

But the point about this third form of punishment , it seems to me, is
not so much the injustice of these laws, they are unjust, but that the
mindset of punishment (especially by authorities) prevents us, or at the
very least hinders us, from exploring rational and reasonable options to
an unsocial behaviour.

Earlier I said that the more rational we become the more sophisticated
punishment will also become. Of course, by sophisticated I do not mean
fairer or more just, but more complex or more far reaching, the digital
tax is a case in point. Indeed this complexity does away with the idea
of punishment and introduces the idea of justice and tax, two concepts
well within the sphere of justice.

This discrepancy between justice and punishment does not necessarily
arise, in my opinion, from the fact that some people are bad. But maybe
because unsocial behaviour is the product of injustice and punishment is
just a primitive instinct.

The question is not what shall we replace punishment with? Or how can we
stop punishment? The question we should be asking is this, if we want
justice shouldn't we checking is justice is actually being done? And we
don't achieve this by waiting for some unsocial behaviour to occur but
by introducing just systems in society.

The other question, we might care to ask, besides punishment being
natural or cultural, is whether punishment is futile or inevitable.
Futile maybe because punishment is counter productive, and inevitable
because we might still be primitive biological systems despite the
paraphernalia of rational agency.

Take care
Lawrence

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from Lawrence, SUNDAY PhiloMadrid meeting at 6:30pm: Punishment: Natural
or Cultural