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law does not side with the popular view (or once- popular) of such insults.
Dueling has long been illegal. Stalking and intimate partner violence are
now recognized as a problem worthy of legal intervention. Once again,
then, even if popular culture sometimes valorizes “manly” rage, modern
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democracies generally reject the idea that an insult or other status- injury
is an offense justifying violence, no matter how angry it makes people.
In U.S. homicide law, the defense of “reasonable provocation” is a
relic of a pre- Eumenidean society: a person who kills out of anger moti-
vated by an “adequate provocation” can sometimes win at least a reduc-
tion in level of offense from murder to manslaughter. In the past, anger
at offended honor or some other status- injury could rise to the level of
an “adequate provocation,” especially if the issue were adultery; now it
is far more likely that the offense would have to be a real harm in Mill’s
sense: assault, for example, on oneself or a member of one’s family. As
I observed in chapter 5, the provocation defense, by (usually) requiring
the defendant to show that the retaliatory violence took place without
sufficient “cooling time,” conforms to my idea that people can be judged
less harshly for getting angry inappropriately for a short time, before
getting their minds in order and turning to the law. Still, the use of ille-
gal violence against the aggressor is always inexcusable, as the defense
concedes— it is mitigation, not excuse— and the defense itself seems to
me an unfortunate archaism that creates a loophole for old ideas about
insult and status to sneak into the criminal law.15 In most respects, how-
ever, the law has long internalized the critique of anger I make here.16
The categorization of offenses, however, is not the only place where
false social values threaten the legal order. Far more tenacious and un-
Aeschylean are the views many people hold about punishment, once
an offender is indicted and convicted. Here retributive ideas continue
to dominate, although they have been criticized for over two thou-
sand years, and the critique is well understood. Despite all the argu-
ments of Socrates, Plato, and Bentham, not to mention Gandhi, King,
and Mandela, many people still favor punishments that fit a retribu-
tive model, according to which the “doer must suffer,” and there must
be “payback.” Even if they also favor deterrence, they tend to think
that only retributive punishments, inflicting pain for pain, could pos-
sibly deter. Other ideas of punishment are repeatedly derided as soft
and unmanly, and politicians lose elections for not being sufficiently
“tough on crime,” a phrase that means “harsh,” “inflicting retributive
suffering” (whether it deters or not).17 If one thinks, as I do, that the
appropriate response to injury is forward- looking and welfarist, incor-
porating, in addition, ideas of generosity and reintegration, one will
have to contend with a large amount of opposing popular sentiment,
and this itself is likely to imperil the practical success of a proposal in
my spirit, even if not its theoretical justification (since one might be
able to show a path by which people might arrive at an overlapping
consensus over time on this question, even if they are far from there
right now).
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Nonetheless, even on this issue the practical task is not hopeless, and
the sheer failure of harsh forms of incarceration to deter has gradually led
to the substitution of the phrase “smart on crime” (meaning doing what
can be shown to deter) for the phrase “tough on crime”— responding to
public sentiments.18 People on the whole want what helps discourage
crime, and they understand that punishment is ultimately about protect-
ing important human goods.
The issue of harsh punishment is so vast that one cannot hope to treat
it exhaustively here. But a persuasive account of how to confront wrong-
doing in the spirit of non- anger can go a good way toward removing the
objection. One may note, before beginning, that conventional ideas of
punishment already incorporate certain ideas of non- anger, such as the
rejection of humiliation and cruelty in punishing. The U.S. Constitution’s
ban on “cruel and unusual punishments” has proven difficult to interpret,
and has never been taken to apply to the average type of U.S. incarceration;
but the presence of the phrase in the Constitution certainly shows that
even the eighteenth- century framers saw moral limits to the puni-
tive role of the state. Let us, then, simply turn to the constructive
theoretical task.
III. Wrongful Acts and the Rule of Law: Retributivist
and Reformist Challenges
How, then, should the state deal with wrongful acts and the anger they
engender? My account suggests that law must take harms very seriously
if they involve significant damage to well- being (not just status). But of
course law could take harm seriously without taking wrongdoing seri-
ously, if it refused to make any distinction between accidents and dam-
ages from natural events, on the one hand, and intentional wrongdoing,
on the other. Such a legal system could still show compassion for vic-
tims, compensating them and trying to protect them from such damages
going forward, but it would not even get close to expressing anger, since
it would not even contain the concept of a wrongful injury.
Such a legal system, however, would be crude and inefficient in pro-
tecting citizens going forward, since protecting people from earthquakes,
floods, and other natural events requires utterly different strategies from
those required to protect them against wrongful damage by others.
Moreover, it would lack something that victims seem right to demand:
the public acknowledgment that the conduct was wrongful, not simply
unfortunate. If the system treats a murderer like a tiger who just hap-
pened to tear into a victim, it will not only fail to prevent such abuses
in the future, since human beings and tigers are deterred by different
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strategies, it will also shortchange the victim, and all of us, since it fails to acknowledge the importance of the human values that law protects.
To that extent, institutions need to look back, in order to move forward.
Even if the healing of diseased social relations is the primary task, the
restoration needs to take place on the terrain of acknowledgment.19
Why is acknowledgment so important? Many things can be said here,
but I think the most important one is forward- looking: public acknowl-
edgment of wrongdoing is necessary in order to preserve and strengthen
trust, or to restore it. To the extent that bonds of trust have been violated or, even, have broken down utterly, restoring them requires a shared
understanding of what is wrongful and what is not.20 Even in a well-
functioning community, trust in the justice of political institutions would
erode if those institutions did not take wro
ngs seriously and acknowledge
that importance in some public fashion. The social contract is about pro-
tecting human life and other human goods, and the state must announce
that life and other elements of human well- being are important.
So institutions should not treat murder as like being mauled by a
tiger. They should express clearly the thought “X did this, and it was
wrong.” On the other hand, if my account is correct, they must not at this
point fall into either of the two traps that anger sets for the unwary. On
the one hand, they should not suppose that proportional suffering rights
wrongs. This archaic and powerful thought grips most of us; but it is a
form of magical metaphysics that does not stand the light of reason. It is
therefore normatively defective, since we want ourselves, and our laws,
to make sense. Murder is not undone by any amount of suffering on the
part of the perpetrator, nor is any other crime. We feel that somehow a
“balance” has been restored, the doer has suffered— and all the things
people say at this point, suggesting that tormenting Y makes X’s suffer-
ing less, or rescinds the damage done. But law is irrational if it behaves
as if law could fix the past. The popularity and the deep human roots of
these thoughts should not make us ignore their incoherence.21 As Plato
says: the person who punishes rationally does not punish for the sake of
a past injustice, but rather for the sake of the future.
Law must also not make the error of seeing the crime as simply a
“down- ranking” or humiliation of X that can be fixed by humiliating Y in
turn and putting Y down below X. That makes sense conceptually, but is
normatively problematic. Law should not collude in the status- obsession
that disfigures so many societies, but should insist on the equal human
dignity of all. (Human equality and dignity, as I have already said, are
a special status, inherent in and more fully defined by all the protected
capabilities; they are not a matter of relative ranking.)
So what can the law say? It can say, first, that O committed a wrong-
ful act and the wrong is serious. If someone wants to call this a retributive
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element in the law, that’s fine with me, but most familiar forms of retribu-
tivism say a lot more than this— and Bentham’s Utilitarian account of
punishment, too, says this. If law is both rational and focused on the right
things— on well- being rather than status— it will, having made that state-
ment, then focus above all on the future, choosing strategies that promote
both incapacitation and specific and general deterrence. In the process,
law may certainly express Transition- Anger, saying that wrongdoing is
an outrage and that something should be done about it. Transition- Anger,
indeed is simply an emotional combination of the two claims I have just
imagined the law making: that wrongdoing is seriously bad and that we
need to think well, going forward, about how to deal with it.
At this point, a rational lawgiver will reject the entire way in which
the debate over the management of wrongdoing is typically cast, as a
debate about the “justification of punishment.” In fact I am inclined to
think that the rational course is to refuse for several decades to use the
word “punishment” at all, since it narrows the mind, making one think
that the only proper way to deal with wrongdoing is through some type
of “mischief,” as Bentham puts it, inflicted on the wrongdoer. The ques-
tion before us is how to deal with the whole problem of wrongful acts, not
how to punish people who have already committed one. Punishment, if
we end up using it, ought to compete for our attention with other strate-
gies for addressing the problem of crime, and thus the debate about the
“justification of punishment” really ought to be about how it measures
up to other strategies a society can use ex ante (and to some extent ex post) to reduce crime. Even the most nuanced retributivism errs at this point,
focusing on what this offender “deserves” rather than on the larger issue
of human well- being and how to protect it, which surely ought to interest
retributivists as well as Utilitarians.
We can certainly think about ex post punishment as a deterrent
(both specific and general), and thus as one way of protecting impor-
tant human goods. Perhaps many offenders can be reformed, although
not by prisons as America knows them. But we must also consider the
much larger issue of deterrence ex ante. As Bentham emphasized, pre-
venting wrongful acts is a complicated task. We need to consider it in the
broadest possible way, asking how nutrition, social welfare, education,
employment, and a variety of constructive policies may contribute. He
argued that the focus on punishment ex post is quite inefficient if what one really wants is less offending: often the same result can be attained
“as effectually at a cheaper rate: by instruction, for instance, as well
as by terror: by informing the understanding, as well as by exercising
an immediate influence on the will.”22 Punishment ex post is a fallback mechanism, in using which we acknowledge some degree of failure in
our ex ante strategies.
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At any rate, one must study the entire question. Bentham had a lot to
say about the larger issue in other writings, many of which remain unpub-
lished (and are being gradually released by the Bentham Project). His
magnum opus was never finished. In Principles of Morals and Legislation, he focuses instead on the narrower task of reconstructing “punishment”
in a Utilitarian spirit. But we should agree with him: the failure of most
societies to consider “punishment” in the context of a larger inquiry into
prevention is a grotesque failure.
We do not always err in this way. Let us consider elevators. A trav-
eler to a distant country finds that elevators are very unreliable. They
are often badly constructed and maintained, and they break down often.
There are no laws about elevators, no mandatory inspections, no licens-
ing or certification. Never mind, her hosts inform her: we don’t spend
money on such things, but we do spend a great deal of money track-
ing down the offenders, and we give them long prison sentences at state
expense, to show them what we think their bad behavior deserves. Our
traveler would be justified in thinking this a very odd and irrational soci-
ety, and one that, at some level, did not take the whole issue of human
safety seriously. (One could say the same for earthquakes, fires, etc.) But
that in some sense non- serious way, I suggest, is how most societies treat
most crimes. This neglect is even stranger in that criminals, unlike eleva-
tors, are equal citizens, among those whose welfare society is committed
to protect and advance.
Why has the debate about crime become narrowed in this way? One
possibility is that the “justification of punishment” is an appealing topic
for philosophers and one that philosophical skills seem well suited to
address, whereas the larger pr
oblem of crime clearly requires a multi-
disciplinary inquiry and is extraordinarily difficult in any case. But such
problems do not make societies treat elevators, building construction in
flood and earthquake zones, etc., in the thoughtless ex post way I have imagined.
A second explanation for the narrowing of debate is that welfarist
deterrence theorists have also narrowed their focus: in order to reply to
retributivists, many of them, unlike Bentham, also focus on punishment
to the neglect of other welfarist strategies.
A third possible explanation is that people think ex ante welfare strategies will cost too much money, and they have forgotten that incarcera-
tion is extremely expensive. The cost of incarceration in the United States
varies, but for federal prisoners it is around $30,000 per year, and for
state prisoners it can be far higher (over $40,000 per year in California).
For New York City, according to a recent study, the figure is over $60,000,
but if one factors in the total cost of incarceration (including salaries and benefits for guards, maintenance of buildings, etc.) the cost to the city is
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181
a staggering $167,731 per inmate.23 The United States has 5 percent of the
world’s population, but 25 percent of its prison inmates. One estimate is
that the total cost to taxpayers is $63.4 billion per year.24 (As the prison
population ages, costs are going way up, due to the high cost of medical
care.) Of course we have a hard time comparing these costs with the costs
of education, employment opportunities, etc., but at least we can under-
stand how they compare to the costs of parole and community service,
given a lot of the prison population is in prison for nonviolent offenses
(such as drug offenses) that would have been handled that way prior to
“three strikes” and “tough on crime,” and are handled that way in many
countries.
Given that these costs are easy to discover, and yet the obsession
with incarceration continues, I think we may also at least entertain a fur-
ther explanation: that retributivism, with its deep roots in popular sen-
timent, has so shaped the debate that backward- looking considerations
about “desert” have simply silenced concern for welfare. This doesn’t