Punishment

I think that in cases of horrific crimes, the death penalty is acceptable, or even required by retributive justice. However, I think this only applies to cases where there is absolutely no room for doubt. I also think that there really are such cases where there is 100% certainty e.g. the perpetrator was seen by many witnesses and confesses, plus as much additional evidence as you need. Unfortunately, if we only make convictions where we have the luxury of this certainty, we set the bar too high, and many guilty people escape conviction. Inevitably, under any reasonable judicial system there will be people charged for crimes they didn’t commit. But when you are charged with a crime, you are thereby unequivocally guilty, and there’s no way of charging someone with being guilty with the qualification, “he might not have done it” and another “he’s guilty of the crime and there’s no doubt”. In the eyes of the law, a guilty verdict is definitive; you did it, end of story. Is there a problem with this either/or approach nature of being charged? Shouldn’t the law recognise that someone is viewed as guilty on the basis of a balance of probability and not, or not always, because the truth has been uncovered as to guilt and innocence? A related problem is that maybe the situations in which there’s 100% certainty are those in which “everyone knows who did it” but there’s no code we can lay down to specify when those situations will occur, you just know it when you see it, kind of thing. But it seems bizarre that we can all clearly recognise cases in which the guilt of a person is not in question, but not be able to use capital punishment just in those cases without risking innocent people being treated in this way.

I think that moralistic judgements and punishments are insidious: they make people do things out of shame, guilt and for the wrong reasons. It seems to me that they can hinder people from empathetically connecting with their own needs and the needs of others, that is moral judgements are metaphorical defensive walls that we erect as part of our outer shell. Allow me to illustrate what I mean. Suppose one child hits another. If the perpetrator's parent interferes and scolds their child using the moralistic language and punishments that is pervasive in society, e.g. 'you are a bad boy', or 'that was a wrong thing to do' and then banning from watching T.V. Now the usual response this will get is either: a) defensiveness, e.g. 'he started it' and/or b) if the perpetrator does refrain from similar behaviour in the future it will probably be because they want to avoid being punished. This could be contrasted to a parent attempting to empathise with why the child hit in the first place and drawing the child's attention to what needs of theirs and of the other child that are not being met. This is essentially Non-violent Communication (http://www.cnvc.org/). I have two related questions: first, is there any sustained criticism of the usage of moralistic judgments and punishments in the philosophical literature? [I have yet to come across any philosopher in the fields of political obligation and ethics who seriously and coherently suggests that all talk of obligations, duties and 'what one should do' is destructive.] Second, what justifications could be offered to defend the usage of moralistic language and punishments?

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