Morriston on Ethical Criticism of the Bible (Part Two)

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What's up with the moral character of the God of Abraham?

(Part One)

This is the second part in a brief series of posts looking at Wes Morriston’s recent paper “Ethical Criticism of the Bible: The Case of Divinely Mandated Genocide”. As noted in part one, the paper takes issue with some Christian strategies for dealing with the more ethically troubling passages in the bible. Last time out, we looked at the Canaanite genocide and Richard Swinburne’s apologia for it. This time out, we’ll consider two further biblical stories and the purported justifications for them.


1. Consorting with the Midianites
According to one passage in the book of Numbers, when the Israelites were encamped with the Midianites at Peor, some of the Israelite men had illicit relations with some of the Midianite women and joined them in the worship of the false god, Baal. It’s a pretty typical tale of theistic infidelity, the bible is littered with similar examples. Needless to say, Yahweh isn’t best pleased by all of this and he sends a plague to kill 24,000 Israelites. As you do.

Interestingly, his wrath abates when a young Israelite named Phinehas impales another Israelite man and his Midianite bride on a spear. Yahweh rewards Phinehas with a covenant of perpetual priesthood — the ANE’s equivalent of tenured professorship, I guess.

You’d have thought that the plague and the impaling would have helped Yahweh to settle accounts with the Midianites, but you’d be wrong. He goes on (Numbers 25:18) to command Moses to “avenge the people of Israel on the Midianites” for what they did in the affair of Peor. This is to be done by harassing and defeating them. Moses dutifully obliges and with the help of his army kills all the Midianite men and all the women who have “known a man by sleeping with him”, with the rest being kept as a reward (Numbers 31:8-18)

Once again, this is all said to be done in an effort to wipe out the spiritual infection (worshipping a false god and so on) that is spread by the Midianites. We covered this notion in some detail in part one. What’s interesting here is the sequence of events and the accompanying rationales. In the earlier passage from Numbers, the Israelites were punished for disloyalty (the plague that kills 24,000). In the later passage, it’s the Midianites who are punished for their role in what happened in the earlier passage. In other words, the Midianites are punished for helping the Israelites to be punished.


2. Is the Punishment of the Midianites Justifiable?
I find this interesting because of the biblical attitude toward punishment that is evinced in these passages. Indeed, Morriston makes this attitude the centrepoint of his criticisms, but to understand them we need to take a short detour into the concept of retributivism.

Now I’m no big fan of retributivism — as you might have gathered from some of my recent posts — but at least defenders of that position bring with them the idea that punishment can only be inflicted on those who are morally blameworthy, and that the most severe forms of punishment can only be inflicted on those who are really morally blameworthy. Typically, this means that those who are negligent or reckless in their wrongdoing merit less severe forms of punishment, whereas those who intend wrongdoing and act with full knowledge of the likely consequences of their actions merit more severe forms of punishment.

Either way you look at it, genocide is a pretty severe form of punishment. In fact, I doubt whether even the most bullish retributivist would ever think it warranted, but let’s (per impossibile) grant that it could be. Even then, the punishment of Midianites seems unjustifiable. As Morriston points out, they didn’t intentionally engage in wrongdoing since they (presumably) were sincere in their worship of Baal. Furthermore, they did not act with full knowledge of the consequences of their actions because they could not have foreseen how Yahweh would visit a plague upon the Midianites. Thus, they could not be eligible for the more severe forms of punishment.

Allow me to summarise this line of thinking, as is my wont, in argumentative form.

• (1) It is unjustifiable to inflict severe forms of punishment upon those who neither intend wrongdoing, nor act with full knowledge of the consequences of their actions.

• (2) The Midianites in the affair at Peor neither intended wrongdoing, nor acted with full knowledge of the consequences of their actions.

• (3) Therefore, it would be unjustifiable to inflict severe forms of punishment upon the Midianites for what they did in the affair at Peor.

I think this is pretty compelling — assuming the presentation of biblical story is correct — and it could be used as the basis for further arguments about the moral character of Yahweh and/or the reliability of the bible. I leave those to the imagination of the reader.


3. The Agonies of the Amalekites
The next story discussed by Morriston comes from 1 Samuel 15. It tells us that Yahweh is going to punish (the actual word used is “paqad”) the Amalekites for what they did in opposing the Israelites when they first came out of Egypt. We are told that they are to be utterly destroyed, and that this includes extermination of the men, women, children, ox, sheep, camels and donkeys (1 Samuel 15:1-5). Quite an extermination, I’m sure you’ll agree. This all hearkens back to an earlier passage in Deuteronomy (25:17-19) in which the Israelites are told that once God has given them rest from their other enemies, and once they have settled in the land of Canaan, they shall “blot out the remembrance of Amalek from under heaven”.

As Morriston notes, the timeline here is again significant. The divine judgment in Deuteronomy predates that actual command to destroy the Amalekites by several hundred years. The reason for the delay is to give the Israelites time to settle on the land of Canaan. There is no suggestion that the descendants of the Amalekites who were alive at the time of the Deuteronomy narrative had done anything to merit punishment in the interim. This suggests — as is in fact all too common in the bible — that Yahweh is quite comfortable with the idea of punishing those who themselves are not guilty of wrongdoing. Again, this would seem to clash with notions of retributive justice according to which punishment is justified if and only if it is imposed upon the guilty.

Perhaps unsurprisingly some Christians try to avoid this troubling conclusion. Eleonore Stump is one of them. She argues that in issuing the command for genocide (let’s not dress it up) God could have taken into account other facts about the Amalekites. In particular, she argues that the Amalekites might have been on a bad cultural trajectory since the earlier time and that God realised enough was enough. The Amalekite national identity needed to come to an end. Stump emphasises this as a possible reading, not a necessary, of the relevant text.

Morriston declines her invitation to this make possible reading for two reasons. First, although her suggestion is possible — in the sense that it involves no obvious contradiction with the text — it is not plausible. It involves ignoring or downplaying what the text actually says. This is reinforced by his second reason which is that there’s every reason to suspect that God would visit punishment on future generations for the actions of previous generations. For example, the Mosaic Covenant explicitly states that God will do this (Exodus 20:5). Morriston discusses several other biblical passages that support this idea.

Okay, that's it for now. Next time we'll look at what Morriston has to say about the reasons for not commanding genocide.

The Ethics of the Death Penalty (Part One)

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As promised last week, this is the first in a series of posts on the ethics of the death penalty. As with the applied ethics posts from earlier in the summer, the series will track closely the essays in the book Contemporary Debates in Applied Ethics . This book is organised around groups of “pro” and “con” articles on a number of controversial ethical issues.

First up for our consideration is Louis Pojman’s pro death penalty article. I’ve been reading around the death penalty issue quite a bit recently, and from what I’ve read it seems like Pojman is one of the leading contemporary defenders of capital punishment.

He makes his case for the death penalty by adopting an uneasy alliance of retributive and consequentialist arguments. I say this alliance is uneasy because, as I will suggest towards the end of my analysis, the arguments can pull in opposite directions. This creates something I will refer to as the “Death Penalty Dilemma”.

More on that later, for now let’s just give Pojman’s arguments the chance to breathe.


1. The Basic Contours of the Death Penalty Debate
We need to get some perspective on the death penalty debate first. The death penalty is a particular kind of punishment that is usually reserved for those who have committed the most heinous crimes (the actual number of “capital offences” can vary from jurisdiction to jurisdiction). Punishment is the intentional infliction of harm (usually with state backing) on another human being, in response for something they have done. Harm is typically deemed to be morally unjustified, but harm done in the name of punishment is different because punishment is thought to be morally justified.

There are two basic positions one can adopt when trying justify punishment. The first is to adopt a retributive justification; the second is to adopt a consequentialist justification. The retributivist claims that harming those who engage in culpable wrongdoing is an intrinsic good, i.e. something that is good in and of itself. The consequentialist claims that harming those who engage is culpable wrongdoing serves any number of morally justifiable ends, such as deterring future wrongdoing, rehabilitating the offender or protecting social order. These justifications have different temporal modes. The retributive justification is backward-looking: it focuses on what the offender actually did and what the most appropriate response to that past action is. The consequentialist justification is forward-looking: it focuses on the future effects of the punishment.

Both types of justification loom large in the death penalty debate. There are retributivists who argue that although other kinds of punishment are appropriate in other cases, death is the only appropriate punishment for certain kinds of wrongdoing. And there are consequentialists who usually argue that killing those who commit certain heinous crimes is the best way to deter those who would have engaged in such criminal activity in the future. That said, there are other consequentialist justifications of the death penalty and these will creep into the discussion.

Anyway, this is just giving you a general picture of the debate and it is illustrated below. Let’s turn now to see what Pojman has to say.

2. The Retributivist Argument
Pojman’s first argument in support of the death penalty is a retributivist one. Somewhat surprisingly, his elaboration of this argument is quite brief. To make up for his brevity, I’m going to spend a little more time outlining the key moves in this argument. I start with a rough-and-ready version:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) The proportionate punishment for murder (and perhaps some other offences) is death.

• (3) Therefore, it is right and proper for those guilty of murder (and perhaps some other offences) to be put to death.

A couple of words about this argument are in order. The first premise is just a statement of the retributivist thesis. I discussed this thesis over the course of two posts last week. The second premise is the key normative claim about the proportionality of the death penalty. Note how death is said to be the proportionate response to “murder (and perhaps some other offences)”. This is significant since, in his article, Pojman makes a partial case for the expansion of the death penalty to cover offences other than murder, including, potentially, white collar crimes. The conclusion (3) then follows straightforwardly enough.

When it comes to the critical evaluation of the retributivist argument, two inter-related questions need to be asked. First, how seriously is the proportionality constraint mentioned in (1) to be taken? And second, is death really the proportionate response to murder (and perhaps some other offences)? These questions are inter-related because how we answer the first question will affect how we answer the second.

So let’s turn first to the seriousness of the proportionality constraint. One way in which to take the proportionality constraint incredibly seriously would be to adopt something akin to the biblical lex talionis . In other words, to punish the perpetrator of every act of wrongdoing by subjecting them to the same act of wrongdoing. Thus, if they steal another’s property, they should have some property stolen from them; if they sexually assault someone, they should themselves be sexually assaulted; and if they kill somebody, they should themselves be killed.

Although this interpretation of the proportionality constraint would support the second premise of the argument, it unravels upon closer inspection. Apart from its sheer impracticality (e.g. what do we do with serial killers — kill them, resuscitate them and then kill them again?), there seem to be a couple of good objections to it. First, it seems to have little intuitive support: I, for one, see little intuitive support for the notion of raping a rapist. Now, I concede intuition is not always a good ground for an argument, but since intuition is one of the primary means of justifying retributivism in the first place, it seems appropriate to raise this objection here. Second, this interpretation of proportionality would seem to warrant the creation of a particularly sadistic and socially destabilising network of punishers. This would undermine the moral foundations of civilisation. Finally, this interpretation could only make the death penalty appropriate for murderers, which is not what Pojman wants. He wants to expand the set of capital offences.

So the lex talionis interpretation of proportionality seems like a non-starter. Nevertheless, we must be careful not to throw the baby out with the bathwater here. There is, after all, something to be said for a proportionality constraint on punishment. I think we could all agree that the shop-lifter does not deserve to be as harshly treated as the serial killer; and that the strength of the punishment ought to be graded in accordance with the gravity of the offence. But saying that says little about the precise form that the punishment should take. And this is key. For the death penalty to be warranted, it must be the case that the proportionality constraint mandates death as the appropriate response to certain forms of wrongdoing. But as we now see, there is no simple way to go from the need for proportionality to the appropriateness of death.

To sum up, in its current form the argument from retributivism is underdeterminative . That is to say: retributivism by itself doesn’t justify the imposition of the death penalty. Something more is needed.


3. Pojman’s Justification of Death
Whether Pojman is aware of this problem is unclear. I suspect he is since he is well-versed in this debate and since the objection outlined above is taken largely from the writings of Hugo Adam Bedau (an old adversary of Pojman’s on this topic). But he doesn’t address it directly in the essay I’m looking at here.

He does, however, say something that could be construed as justifying death over other forms of punishment. Let me quote from the article:

Human beings have dignity as self-conscious rational agents who are able to act morally. One could maintain that it is precisely their moral goodness or innocence that bestows dignity and a right to life on them. Intentionally taking the life of an innocent human being is so evil that the perpetrator forfeits his own right to life. He or she deserves to die (p. 108).

Now there are ambiguities in this passage, but I think it can be interpreted as making the following argument in support of premise (2):

• (4) Human beings only possess a right to life in virtue of their dignity.

• (5) Whosoever loses their dignity, loses the right to life (corollary of 4).

• (6) If a person intentionally kills another, they lose their dignity.

• (7) Therefore, if a person intentionally kills another, they lose their right to life.

• (8) Therefore, if a person intentionally kills another, they deserve to die.

This can then be carried on to support premise (2).

There are several questionable steps in this argument. First off, it isn't clear that dignity is what generates the right to life. Dignity is a fuzzy, much-disputed concept at the best of times. When it is reined in and defined explicitly in terms of self-consciousness and rationality (as Pojman does) things are better, but then this definition raises further problems. In particular, it casts (6) into serious doubt. After all, it doesn’t seem likely that by intentionally killing another person, you thereby lose your capacity for self-consciousness and rationality. Also, there seems to be an unwarranted jump from (7) to (8). Look to the abortion debate as a guide. Defenders of abortion will usually argue that the foetus lacks a right to life, but very few (if any) would then argue that this lack of a right to life implies that the foetus deserves to die. At most, they’d say it is not impermissible to kill it. Perhaps those more well-versed in the logic of rights could set me straight about this: would the loss of the right to life imply a duty to kill?

If we take these problems seriously, and I think we must, Pojman’s use of the retributive argument is unpersuasive, at best. Perhaps he’ll have better luck with the deterrence argument. We’ll see in part two.

Morriston on Ethical Criticism of the Bible (Part One)

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What's up with the Moral Character of the God of Abraham?

It’s a Sunday so why not look at something in the philosophy of religion? Wes Morriston has a new paper out challenging the remarkable willingness of some Christian philosophers to defend the more morally questionable passages in the Old Testament. I covered one of his earlier papers on this topic a while back. That was when I was relatively new to this whole blogging thing and I figure there’s no harm in taking a second look at the topic.

For those who are interested, the paper I’m using as reference is the following:

• Morriston, Wes “Ethical Criticism of the Bible: The Case of Divinely Mandated Genocide” (2011) Sophia , Published Online 2nd August 2011

On the face of it, the paper is relatively straightforward. Morriston criticises three sets of Christian responses to the passages in the bible in which God seems to condone or command genocide. First, he criticises the likes of William Lane Craig, Paul Copan and Richard Swinburne, who seem to support the biblically cited reasons for genocide. Second, he will criticise the likes of Eleonore Stump, who suggests alternative moral justifications for the genocide. And third, he will criticise the skeptical theist response to these cases.

Unfortunately, the resulting article is a bit messier than that initial description suggests.  The actual discussion doesn't follow the structure set out at the beginning in the logical fashion that I would like, and Morriston sometimes fails to properly specify the nature of his criticism against the various Christian responses. This is something I’ve encountered in several other articles by Morriston, which is a shame since he invariably has good insights into the issues he discusses.

Anyway, I’ll try to follow Morriston’s structure as best I can here, feeling free to elaborate on certain points where I think this helps the overall argument. In this post, I’ll be looking at Richard Swinburne's attempt to justify the Canaanite genocide. Subsequent posts will cover different passages and different justifications.

Note: most of the references in Morriston's article are to the book Divine Evil? The Moral Character of the God of Abraham (Oxford: OUP, 2011). For example, the discussion of Swinburne's argument is based on passages from this book.


1. The Canaanite Genocide
Anyone who has been following the philosophical debate over these biblical passages over the past few years will, no doubt, be familiar with the details of the Canaanite genocide. Canaan was, roughly, the land that was bequeathed to the Israelites by Yahweh. The Canaanites were the people occupying that area of land before the Israelites, led by Moses and Joshua, invaded. This was following their exodus from Egypt and their inexplicably long period of desert-wandering.

The genocide is presaged in several passages in the book of Deuteronomy, Moses (acting as always with the backing of Yahweh) tells his people that when the time comes Canaanites are to be utterly destroyed, that they are to “make no covenant with them” and “show them no mercy” (Deut. 7:1-2).

There is, however, a distinction to be drawn between the inhabitants of the nearby Canaanite cities (those given to the Israelites) and the inhabitants of the faraway cities. In the case of the latter, all the men are to be killed while the women, children, livestock and other goods are to be taken as booty (Deut. 20:14-15). In the case of the former, the Israelites are not to “let anything that breathes remain alive” (Deut. 20:16).

Of course, if some are to be believed (namely: Paul Copan and Matt Flannagan), all this reckless talk of extermination is mere hyperbole and not to be taken seriously. We should feel about it much the same as we should when you say that you are going to “kill” your boss following a particularly stressful day at work.

The hyperbole defence is not discussed by Morriston so, if your interested, check out the relevant passages of Thom Stark’s book-length rebuttal of Paul Copan on this. Briefly, as Stark points out, the hyperbolic language in the bible mimics the imperialistic propaganda that was common in the Ancient Near East (ANE). Texts of this sort would have to have been read to (or recited to) the people by the elites who could read and write. It cannot be taken for granted that they would convey it in a nudge-nudge wink-wink manner or, indeed, that it would be understood to be hyperbolic by those who were hearing it. It is more likely that this language was used to encourage tribal or nationalistic loyalties.

There’s a more general point to be made here too. According to leading biblical historians, the genocidal events depicted in the bible are unlikely to have taken place. Morriston and other critics would be happy to accept this view — indeed, I’m happy to believe that most of the bible is fictional. But this would do nothing to lessen the force of the criticisms being made here. After all, the concern here is with the moral character of the being depicted in the bible, and with those who take the moral authority of the bible seriously. If you wish to bowdlerise the biblical text such that it can no longer have a claim to historical accuracy, or reject it’s moral authority completely, then that’s all for the good.


2. Justifying the Canaanite Genocide
Still, there are those who want to have their cake and eat it too; who wish to preserve both the historical accuracy and moral authority of the bible. How do they do so in the light of such seemingly morally abhorrent passages? The basic strategy is to argue that God had some morally compelling reasons for commanding or condoning the acts.

The first variation on this strategy, mentioned at the outset, is to offer an apologia of the moral reasons that are mentioned (explicitly or implicitly) in the bible itself. Richard Swinburne does exactly this when he defends the “spiritual infection” justification of the genocide which is implicit in Deut. 20:17-18:

You shall annihilate them…so that they may not teach you to do all the abhorrent things that they do for their gods, and you thus sin against the lord your God.

The abhorrent things that they did for their God are, apparently, twofold. First, they are alleged to have engaged in child sacrifice (Deut. 12:31) and second, they are said to have had a ritualised practice of male prostitution (1 Kings:14:24). Swinburne suggests that these practices constituted a lethal spiritual infection and that genocide was the best cure. He backs this up with the following, rather startling, analogy:

…many people would think it justified to kill people who had an infectious lethal disease and refused to be kept isolated from the rest of the population. Those who think that an infection which leads to spiritual death is as bad an evil as one which leads to natural death will think that there are reasons (though not of course adequate reasons) for the Israelites to kill the Canaanites even without a divine command. (2011, p. 225)

This passage can be construed as endorsing a straighforwardly analogical argument, as follows:

• (1) We would have prima facie moral reason to kill those with an infectious (physical) disease, if they refused to be kept isolated from the rest of the population.

• (2) Those with an infectious spiritual disease are in all important respects similar to (perhaps even worse than) those with an infectious physical disease.

• (3) Therefore, we would have prima facie moral reason to kill those with an infectious physical disease, if they refused to be kept isolated from the rest of the population.

Of course, the “prima facie” clause in this argument is key. As was apparent from the quoted passage, Swinburne thinks these prima facie reasons are not necessarily morally adequate. In other words, the reasons may not be decisive or compelling. What can make them morally adequate? The answer is that God, who has dominion over life, has the moral authority to command us to act upon those prima facie reasons, and that his command would makes those prima facie reasons morally compelling. So we follow up the preceding argument with this:

• (4) If God commands us to act upon prima facie moral reasons, they become morally adequate reasons for action.

• (5) Therefore, if God commanded us to kill those with an infectious spiritual disease (who refused to be kept isolated), we would have morally adequate reasons for doing so.

I should note that this is my own reconstruction of Swinburne’s argument. It is based on what I found in Morriston’s article, but you should know that Morriston himself is less formal in his analysis. Assuming my reconstruction is fair, how can this argument be challenged? We turn to that question next.



3. Responding to Swinburne’s Argument
I have several qualms about the analogy Swinburne uses to ground his argument. Most obviously and most importantly, it is not at all clear to me that “most” people would think it justified to kill someone with an infectious disease, even if that person refused to be kept isolated. I’d say we only have reason to kill such a person if all other means of preventing the spread of the infectious disease are unavailable to us. The mere unwillingness of the person to be isolated would seem insufficient. If we had a cure for the disease, then we should use that. If we can persuade the person to confine themselves in the interests of the greater good, then we should do that. If that fails, we should sedate and quarantine the person. Killing them would seem to be permissible in only the most extreme circumstances.

This essentially undercuts the persuasive force of Swinburne’s analogy. There’s no reason to think that the spiritual disease afflicting the Canaanites was so bad that killing them was the only solution. If the problem is that they worship a false god (or group of gods), then surely presenting them with compelling evidence of the true god would “cure” them of their infection?

It also seems to me that the analogy between what we have prima facie reason to do, and what God has prima facie moral reason to do doesn't work. If (under extreme circumstances) we do have permission to kill someone with an infectious disease, then I suspect it is only because we make our moral choices under extreme temporal and physical constraints (lack of resources to stop the spread of infection, lack of time to quarantine etc). God would not operate under such constraints; he would be bound only to the constraints of logical possibility. Thus, I see no reason to think God has even prima facie moral reason to command genocide.

To these criticisms we can add two of Morriston’s.

First, is his claim that Swinburne’s argument proves too much. After all, there are surely plenty of people alive today (perhaps myself included) who suffer from a contagious spiritual infection and who are pretty stubborn about trying to spread it around. Do we have reason to kill them too? Morriston thinks Swinburne has no principled reason to say “no”. (He returns to this point later in the article, and so too shall we).

Second, he points out that even if eradicating a spiritual infection were grounds for genocide, the biblical text itself seems clear that genocide was not fit for purpose. The passage in 1 Kings that Swinburne uses to support the notion that the Canaanites engaged in ritual prostitution refers to a period long after the conquest of Canaan, and it suggests that the Israelites availed of such prostitutes at that later time. Indeed, in the biblical narrative the Israelites seem to repeatedly turn away from Yahweh only to turn back again later when some calamity is visited upon them. Given this alleged waywardness, it seems like genocide was not a good means to God’s desired end.

We’ll leave it there for now. We’ll look at the rest of Morriston’s article later.

Moore on Justifying Retributivism (Part Two)

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(Part One)

This is the second post in a brief series looking at Michael Moore’s article “Justifying Retributivism”. In part one, I introduced the conceptual framework Moore uses to support his justification of retributivism; in this second part, I turn to the actual argument Moore uses to justify retributivism.

Before we start, it’s worth reemphasising what it is that Moore is really trying to justify with his argument. As we saw the last day, Moore takes retributivism to be the principle that we have a moral obligation to punish those, and only those, who are guilty of wrongdoing. Moore interprets this principle in a deontological manner. In other words, he believes that the obligation to punish holds irrespective of any positive or negative effects that the punishment might have. This is partly because he takes punishment to be an intrinsic good. In trying to justify retributivism, Moore is trying to justify this complex of views about the nature of punishment.

How does he do it? That is what we are about to see.


1. The Thought Experiment and the Argument
Moore takes our intuitive judgments about particular cases seriously. He thinks we derive our more general ethical principles via abductive inference from particular judgments. This results in a kind of reflective equilibrium in which our general principles cohere with (are in equilibrium with) our intuitions.

Aiming for reflective equilibrium is probably the most common strategy in applied ethics, mainly because, as David Boonin points out, no other methodology seems to be available. The differences, such as they are, come between those who afford decisive weight to our intuitions and those who afford decisive weight to rationally compelling general principles. Peter Singer would be an example of someone who belongs in the latter camp; Moore seems to belong in the former.

This obviously influences how Moore argues for retributivism. He does so by first developing a thought experiment, asking us to consider our judgments about this thought experiment, and then arguing that only retributivism can account for these judgments. This is an acceptable form of argument, provided one accepts the methodological strategy outlined above.

Let’s look now at the thought experiment Moore uses as the basis for his argument. It is inspired by the story of the Russian nobleman in The Brothers Karamazov . Roughly, the story is the following: there is nobleman who owns a particularly nasty and vicious pack of dogs. On one occasion he commands these dogs to tear a young child limb from limb, and he forces the child’s mother to watch this barbaric act. The question arises: what do we think is the appropriate response to this state of affairs? The suggested answer is: we think the nobleman should be punished.

This suggested answer provides some prima facie support to retributivism, but Moore knows he isn’t home and dry yet (far from it) since alternative theories of punishment might sustain our intuitive judgment about this particular case. So Moore adds a couple of qualifications.

First, we are asked to assume that no purpose other than that of harming the guilty party can be served by the punishment. In other words, we are to assume that the punishment could not serve as a deterrent for would-be wrongdoers - perhaps this is because we are part of an island society that is about to disband or collapse.

Second, we are to consider two variations on the thought experiment: (i) the first-person version in which we ourselves are the Russian nobleman and (ii) the third-person version where we simply bear witness to the Russian nobleman’s act.

What happens when we include these qualifications? Moore thinks we will still think that punishment is warranted. We will think it warranted in the first-person scenario due to our strong sense of moral guilt for what we have done; and we will think it warranted in the third-person scenario due to an appropriate feeling of empathy for the victims. This suggests that our intuitive judgments are strongly in line with the retributivist principle. Furthermore, since no other moral purpose can be served by punishment in this scenario, we are inclined towards the view that punishment is an intrinsic good.

All of this can be crafted into a more formal argument in favour of retributivism. As follows:

(1) We are justified in accepting whatever moral principles and concepts best account for our intuitive judgments about particular cases. 

(2) The principle of retribution and the intrinsic goodness of punishing the guilty best account for our reaction to the two scenarios outlined above. 

(3) Therefore, we are justified in accepting the principle of retribution and believing in the intrinsic goodness of punishing the guilty.

The diagram below summarises most of the above.

2. Charges and Responses
Moore acknowledged that his argument suffers from a number of apparent defects. Five of which have featured in the literature and each of which he attempts to respond to. Some of these criticisms get into larger debates in moral philosophy, but I’ll try my best to summarise them here.

(a)  The Charge of Circularity : A common rejoinder to Moore’s argument is to charge it with circularity. It would appear that his general retributive principle is being sustained by nothing more than a retributive judgment in a particular case. This seems to beg the question as to whether retributivism is justified. Moore notes that there a few different ways of making the charge of circularity, not all of which are compelling. For instance, he thinks it is clearly wrong to think that a judgment about a particular case is literally the same thing as the principle one generalises from that particular case. An alternative way of making the charge is to argue that since the judgment in the particular case is about the desert of the guilty it makes the general principle about the desert of the guilty trivial. Moore rejects this. He argues that the judgment in the particular case is not about desert but, rather, about punishment simpliciter . Desert is the more general concept that helps to explain the judgment about the particular case. 

(b) The Charge of Illegitimacy : Some argue that Moore’s methodology — that of deriving general principles from judgments about particular cases — is illegitimate, that you can only derive principles of this sort from other, more basic, principles. Moore responds by saying that such a charge forces us back into the kind of foundationalist epistemology that has largely been rejected. Now, there are certainly some cogent contemporary defenders of foundationalism, but I think Moore has a reasonably defensible point here. 

(c) The Charge of Subjectivity : Another methodological criticism is to make the point that Moore’s coherentist justification of general ethical principles cannot help us to arrive a objective ethical truths. At best, it can help us to arrive at a subjectively coherent web of beliefs. This gets a the issue of how much weight is to be attached to intuitive judgments in ethical reasoning, an issue I’ve covered in my series on evolutionary debunking arguments. As noted in that series, how seriously this charge is taken depends on one’s metaethical views. An anti-realist is likely to be unperturbed by the reliance on subjective judgments, but a realist might be. 

(d) The Charge of Emotionality : It could be argued that the responses to the particular cases outlined engage the non-rational, emotional faculties — indeed, Moore encourages such an interpretation when he appeals to feelings of guilt and the sense of empathy — and that they cannot then be used to support rational moral principles. This criticism doesn’t take issue with the particular sort of emotions being tweaked by the thought experiments, but rather with the more general use of emotions. This criticism only works if one thinks that the emotions have no cognitive element to them, something which many would now reject. It is also worth bearing in mind that there are some who argue that moral judgments are, properly understood, entirely constituted by emotions. Moore rejects this view so he is inclined to downplay the strength of the connection between the emotions and the moral principles that we derive from the particular cases. He argues that emotions are our main heuristic guide for discovering moral truths, but nothing more than that. 

(e) The Charge of Narrowness : A final criticism of Moore’s argument is that the retributive principle derived from our responses to particular cases like those outlined above cannot be general enough to cover all instances of culpable wrongdoing; it can only cover instances of wrongdoing that are sufficiently similar to those outlined above. This is a problem for Moore since he thinks that the retributive principle undergirds the entirety of the criminal justice system. The response here is complex since it depends on how “wrong” one takes all criminal acts to be. It is, after all, possible that the legal system is too harsh or even outright immoral in criminalising certain forms of conduct. Moore’s approach here is piecemeal. In the case of clear moral wrongs that are also criminal, he thinks the principle will carry over, although, understandably, the strength of the deserved punishment will decrease with the gravity of the wrongdoing. As for acts that are morally neutral or morally good that happen to be criminalised, he thinks the principle will not carry over. So much the worse for any legal system that engages in such arbitrary criminalisation.

This then completes Moore’s defence of retributivism. No doubt the methodology will still seem questionable to many and the conclusion raises further questions: how do we know when someone deserves punishment? Which forms of punishment are proportionate responses to which forms of wrongdoing? And so on. I’ll be looking at some of these issues in the near future.

Moore on Justifying Retributivism (Part One)

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Well, here I am. After a couple of months hiatus (my longest ever) I am now back and ready to blog. As mentioned yesterday, I'm going to be integrating the content of this blog more directly with my ongoing research and teaching. This means you can expect to find a lot more posts dealing with applied ethics, the philosophy of responsibility, the philosophy of evidence, and game theory. Don’t worry though, I’m hoping to do some posts on the philosophy of religion when I get a chance (maybe I’m being naive).

Anyway, for my first set of substantive posts, I’m going to be looking at retributive justice and the death penalty. This is part of an attempt to prepare for some lectures I’ll be doing later in the year on the ethics of the death penalty. I was going to launch directly into a discussion of the arguments for and against the death penalty (once again using the book Contemporary Debates in Applied Ethics as my guide), but since those arguments rely, in part, on an understanding of retributive justice, I thought I’d back-up and consider that concept in a little more depth.

As a result, I’m going to spend the rest of this post focusing on a paper by the legal philosopher Michael Moore (not to be confused with the documentary film director of the same name). The paper is the following:

• “Justifying Retributivism” (1993) 27 Israel Law Review 15

The title hints at Moore’s own philosophical leanings (he has been one of the most prominent defenders of retributivism in the recent past) but in the article he does a good job clarifying the nature of retributivism, and presenting arguments that can be offered in its defence. I’m going to look at both of these in what follows.


1. What is Retributivism?
We can begin with a simple definition. As Moore puts it, “retributivism is the view that we ought to punish offenders because and only because they deserve punishment.” (p. 15) In addition to this, retributivism is usually taken to include a proportionality constraint. In other words, the retributivist usually believes that the punishment of the guilty must be proportionate to their level of wrongdoing. Since I’m ultimately going to be considering the death penalty, it’s worth flagging at this point that death is taken by some to be the proportionate punishment for murder and perhaps some other offences.

Moore thinks that there are a number of ambiguities present in this basic definition. These need to be addressed and he spends several pages trying to do so. We can summarise the results of this exercise as follows:

• The definition of retributivism appeals to the concept of desert ( i.e. the idea that the connection between an agent and his act sometimes deserves a certain kind of treatment). All theories of punishment, retributive and non-retributive, make some sort of appeal to this concept. What distinguishes the retributivist is his belief that desert is both a necessary and sufficient condition for punishment. What’s more, the retributivist also typically holds that desert is an exclusive condition for punishment, i.e. no other condition will warrant punishment. Punishment may well have as a consequence the deterrence of wrongdoing or the increase of the aggregate sum of happiness in a society, but these are happy accidents, not alternative grounds for punishment.

• Like all moral concepts, retributivism, if accepted, places moral demands on both state officials and citizens. But what is the nature of these demands? Sometimes it is believed that retributivism merely makes punishment of the guilty morally permissible - something we can do if we wish, but which are not obliged to do. Moore thinks this is too weak. He thinks that retributivism actually makes punishment of the guilty morally obligatory. In other words, it gives us a duty to punish the guilty.

• A popular distinction — one endorsed by John Rawls and HLA Hart — is that between the justification for particular acts of punishment and the justification for institutions of punishment as a whole. Hart, for example, held that particular acts of punishment could be justified on retributive grounds, while institutions of punishment could be justified on more utilitarian grounds. Moore doesn’t buy this distinction, he thinks the justification for both must be the same. He has a reason for this that will become apparent when we consider his arguments in favour of retributivism.

• Retributivism is often thought to be justified solely on deontological grounds. But Moore thinks this is need not be the case. The retributivist believes that punishment is an intrinsic good (one among many possible intrinsic goods that need to be promoted) and so it is conceivable that he could justify punishment on consequentialist grounds. Nevertheless, Moore considers himself to be a deontologist about punishment and this comes through in his subsequent arguments.

With these clarifications out of the way, we can proceed to consider how one goes about arguing in favour of retributivism.


2. Arguing for Retributivism
Moore identifies three possible ways in which the retributivist can argue for his position:

(a) The Conceptual Argument : The retributivist can argue that his is the only acceptable theory of punishment because the concept of punishment, properly understood, can only be applied to those instances in which people are harmed because they deserve it. This argument would involve a typical exercise in conceptual analysis. Such an analysis is unlikely to be persuasive since even if it is correct it leaves open the deeper question of whether punishment is something we wish to have at all. 

(b) The Functional/Interpretive Argument : The retributivist can argue that his theory offers the best possible explanation (or “interpretation”) for the institutions of punishment that we currently happen to have. This argument obviously suffers from the same flaw as the conceptual argument, viz. it leaves open the question of whether we should have these institutions in the first place. 

(c) The Moral Argument : The retributivist can argue that his theory tells us what the morally correct reponse to certain acts of wrongdoing actually is. This kind of argument will appeal to whatever criteria or standards we take to justify moral beliefs. So if we are consequentialists, the argument will involve a cost-benefit analysis pointing to the respective goods that can be achieved by only punishing those who deserve to be punished; alternatively, if we are non-consequentialists, we appeal to whatever standards we use to justify actions as being intrinsically right.

Moore is, perhaps unsurprisingly, solely concerned with the third style of argument and his goal is to provide a version of it. This raises the obvious question: what standards will he appeal to when justifying the moral propriety of retributivism? At this point in the article, Moore launches into a discussion of the distinction between intrinsic and instrumental goods, on the one hand, and first- and second-order principles in ethics, on the other. It’s pretty interesting stuff, but I’m going to skip over much of it.

The basic idea is that the intrinsic/instrumental distinction is a metaphysical one concerning different types of value, whereas the first-order/second-order distinction is an epistemic one concerning the way in which we come to know of ethical truths. Moore holds that first-order principles are reached via an abductive inference from more particular second- or indeed third-order principles arising from particular cases. In other words, he is a kind of ethical intuitionist, in that he assigns considerable weight to intuitive judgments about particular cases, and uses these judgments to develop more general ethical principles. Frances Kamm is one of the more vigorous proponents of this approach to ethics.

This obviously has implications for the overall argument offered in favour of retributivism. Moore thinks that retributivism is a first-order principle, describing an intrinsic good, that we are categorically obliged to honour in our actions, even if this means we fail to maximise the overall good. Given his intuitionistic predilections, he justifies this conclusion by first considering particular cases, then deriving conclusions about intrinsic good and first-order principles from our judgments about these cases, and then showing why the principle arrived at cannot be followed in a consequentialist manner. I’ll consider this argument the next day.

Back in Action

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Hello there.

This is just a quick note to let you all know that I am now (finally) getting back to blogging. In fact, I'll be posting the first new stuff tomorrow. Things have changed a bit in my life since I stopped back in July. I'll still be doing the same style of posts as I did in the past, but because I've started a new research and teaching job, the content will probably reflect what I'm currently working on more so than it did in the past. I don't know if you'll notice that much of a difference, but I figure it's worth warning you anyway.

Anyway, thanks for bearing with me while I was in transition mode over the past two months.

Oh and, in case you were wondering, I did manage to get my PhD - kind regards to all the well-wishers.

Cheers,
JD

Update and Some Cool Stuff

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I'd like to apologise to all my regular readers for my lengthy absence from blogging. Unfortunately, the past month and half has been a time of considerable upheaval for me. I'm moving house in order to start a new job in September, and I'm preparing for my final assessment on my PhD. I'm expecting to get back to some sort of regular posting in September once this is over.

In the meantime, and to keep you all busy, you should check out the following philosophy papers. I thought they were pretty cool and some may even be groundbreaking.


1. "A Counterexample to the Contrastive Account of Knowledge" by Jason Rourke
This article is all about the difference between what we might traditional accounts of knowledge and contrastive accounts. A traditional account of knowledge would maintain that knowledge is best understood as a relation between a subject (S) and a proposition (P), such that S knows P. Contrastive accounts of knowledge maintain that knowledge is best understood as a relation between a subject (S) and two propositions (P and Q), such that S knows P rather than Q. Contrastive accounts of knowledge have always seemed appealing to me, but in this article Rourke presents a counterexample to the account.


2. "An Impossibility Theorem for Amalgamating Evidence" by Jacob Stegenga
I have to say I'm incredibly excited (and slightly disconcerted) by this article. It suggests that amalgamating evidence from different sources when trying to assess a single overall hypothesis is impossible, in much the same way that amalgamating individual preferences into a social preference ordering is impossible. In other words, this article could do for the philosophy of evidence what Arrow's impossibility theorem did for political philosophy.


3. "The Armchair and the Trolley: An Argument for Experimental Ethics" by Guy Kahane
I haven't much to say about this one. Kahane seems to have been churning out consistently interesting philosophical papers on a diverse range of topics over the past year or so (I covered one of them before here) and this is just another one to add to that collection. In it, he argues that even avowed moral intuitionists have reason to sit-up and pay attention to what's going on in experimental ethics.


4. "Compatibilism and Moral Claimancy: An Intermediate Path to Appropriate Blame" by Seth Shabo
This paper looks at the type of moral responsibility that survives the rejection of libertarian free will and hard determinism.  It's probably the best paper I've ever read on the topic - and I've read quite a few at this stage. Shabo has another good one on the "Mind argument" against libertarian free will. It'd be worth taking a gander at that one too, if you get a chance.


That's all for now. Check back in September.