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Posts Tagged ‘justice’

My Twitter feed has been filled with Americans and others expressing outrage about a Saudi court’s sentencing a man to be paralyzed from the waist down. He had stabbed a man in the back, paralyzing him.

I’m not going to defend or oppose the sentence, but I am going to defend a principle here: the violence inherent in the justice system should be obvious rather than hidden.

A couple of years ago, Peter Moskos suggested bringing back flogging as an option for prisoners: a year off your sentence for every stroke of the lash. He wrote eloquently of the horrors of the carceral state. And, so long as judges don’t simply respond by increasing sentence duration, it’s hard to see how the option to choose the lash would make prisoners worse off. As I wrote at the time:

I’m pulled to agree with Moskos. But I worry. I worry that the best evidence seems to suggest that prison deters crime mainly through incapacitation – criminals cannot commit crimes except against other criminals while behind bars. There’s good evidence for deterrent effects through things like California’s three strikes legislation, but incapacitation matters a lot. Longer term crime rates could go down with a switch from prisons to flogging if those committing crimes were better able to maintain a connection to the community and if prisons encourage recidivism. But rates would almost have to increase in the short term: those viewing flogging as much cheaper than a jail term would expect a reduction in the effective expected punishment for a criminal act. I’d hope that Moskos’s prescription would maintain the use of prisons as preventative detention for the really scary crazy dangerous cases.

A decade ago I would have worried that reducing the price of punishment experienced by the state would increase the total amount of punishment. If it’s expensive to keep a prisoner for a year, the state might be reluctant to put marginal offenders in jail. That’s not proven much of a constraint, so I worry rather less about that now.

But I do worry that the mob used to enjoy the spectacle of a public hanging.

When I read about cases like John Horner, (likely) entrapped by the DEA and facing a 25 year mandatory sentence for having sold his leftover prescription pain medicine to another man who had made him believe that he was in desperate pain, I wonder whether it’s the Saudis or the Americans who are really out of line. If you had two young daughters, and were facing 25 years delivered by the American justice system for doing no harm to anyone, wouldn’t you prefer surgical paralysation? I would.

Sometimes I wonder whether the focus on injustices committed abroad are a way of avoiding thinking of the ones at home.

In other news, we now have decent evidence that “tag and release” is more effective in preventing recidivism than incarceration. Here’s the abstract from the newly published paper by Di Tella and Schargrodsky in the Journal of Political Economy:

We study criminal recidivism in Argentina by focusing on the rearrest rates of two groups: individuals released from prison and individuals released from electronic monitoring. Detainees are randomly assigned to judges, and ideological differences across judges translate into large differences in the allocation of electronic monitoring to an otherwise similar population. Using these peculiarities of the Argentine setting, we argue that there is a large, negative causal effect on criminal recidivism of treating individuals with electronic monitoring relative to prison.

Lengthy carceral sentences for drug crimes are arguably behind much American inner-city disfunction. When a reasonable proportion of men of marriageable age are in prison, really bad things start happening to family formation.

Moskos is looking more right all the time.

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Over at Bleeding Heart Libertarians, there have been some interesting posts recently on moralized and non-moralized conceptions of freedom. Jason Brennan says defining liberty to mean only negative liberty is “linguistic revisionism” without philosophic import. He then makes the case that bleeding-heart libertarianism (or Rawlsianism or various other non-traditionally-libertarian conceptions of property rights) does not necessarily violate the “non-aggression axiom.” Finally, he argues against moralized conceptions of freedom. I agree with the first two posts but not the last one.

It’s true that people use “freedom” to mean different things. Hobbes infamously defined it as the absence of physical constraint. Jason prefers something like “ability to realize one’s ends.” Both of these definitions are non-moralized. As Jason makes clear, positive liberty is not only not good by definition, it is not always good. My freedom to swing my fist into your nose unprovoked does not deserve respect — but it’s still freedom, in this non-moralized sense.

Now, Jason is absolutely right that nothing substantive turns on how we define our terms. He’s also right that simply defining freedom as justice (that which is, in the final analysis, right) abuses ordinary language and is tautological. On the other hand, I will note a tension between the claim that positive liberty is not always good and this claim:

The thing that Marxists and others mean by “positive liberty” is valuable and worth promoting. One of the best arguments for classical liberal institutions is that as a matter of fact they do a good job getting people positive liberty.

But if positive liberty is not only not good-by-definition but is also not good-by-inference, then the mere fact that a system tends to promote positive liberty is not a point in that system’s favor. The fact that system X makes it easy for people to swing their fists into other people’s faces whenever they want, thus helping them achieve their ends, is not a point in favor of the justice of system X. Now, the claim might be that swinging fists into people’s faces hurts the positive liberty of those victims, and I agree — but I don’t agree that we can simply sum up positive liberties across people and truthfully say that everyone ought to try to maximize that sum. That’s a controversial moral claim. Indeed, Matt Zwolinski refutes the view strongly here, and even says, “No serious libertarian intellectuals think about libertarianism in terms of maximizing liberty.” I don’t know how this statement squares with what Jason says he and David Schmidtz are arguing about how we ought to evaluate the regime of negative liberty.

Furthermore, I don’t think we can rule out all moralized conceptions of freedom as tautological. People in ordinary language use freedom in a moralized but non-tautological sense all the time. When someone says, “I can say what I want, it’s a free country,” she’s not saying, “It’s a country where I can realize my ends.” She’s saying something like, “In this country, we are not supposed to be subject to the arbitrary domination of others’ wills.” Freedom as non-domination means a great deal to people, arguably more than the mere ability to realize one’s own ends. The reason slavery is so repugnant is not really that it makes the slave unhappy, but that it enshrines an extreme form of inequality and domination. (I’m making a substantive, controversial moral claim here.)

But freedom as non-domination is also not the whole of justice. Marxists like G.A. Cohen arguably accept non-domination just as much as libertarian anarchists like Murray Rothbard. They just disagree about the proper conception of property rights, which also belongs to the domain of justice. Now, if you are persuaded about the libertarian account of property rights, then a Marxist regime imposed without consent looks like unjust domination, un-freedom. Still, even if we read back into “freedom” claims about justice, freedom-as-non-domination is not tautological: it doesn’t simply define freedom as justice. Yet it is a moralized conception of freedom common in everyday discourse.

Update:

Jason Brennan responds by e-mail:

Thanks for posting that. Does this clear up things?

1. I don’t literally mean that positive liberty is always good, but rather that it tends to be good and tends to be worth promoting. Schmidtz and I talk at some length in BHOL about how there’s not clear measure of positive liberty, but that doesn’t mean we can’t make good estimates. If people are living longer, have more options, have more money, have more technology, etc, they will usually have more positive liberty.

2. I prefer to use non-moralized definitions of liberty: Neg lib = absence of obstacles, pos lib = power or capacity. But Schmidtz and I note that in common language, we often mean much more specific ideas when we use the terms “liberty” or “freedom”. If someone says, “X is a free country,” we assume she means they protect a wide range of negative liberties. My raise gave me the freedom to enjoy life, we assume she means positive liberty as capacity/power. And so on.

Schmidtz and I would agree with Matt Z and Nozick that negative rights are side constraints–we shouldn’t have a utilitarianism of rights. But negative and positive liberty are different. Negative liberty first and foremost should be respected, and then promoted. Positive liberty is to be promoted (when it’s good, and if doing so is consistent with our rights).

My response to Jason:

Thanks for the response. It clarifies a great deal. I clearly misread your position on positive freedom. I can’t quarrel with your description of the conceptual landscape below. Substantively, too, we’re not far apart, though I don’t think it’s generally morally impermissible to refrain from promoting the positive liberty of humanity in general (for instance, in order to focus on one’s own life projects).

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I recently came across this interesting, five-year-old interview with law professor William Ian Miller on “talionic” law in the Middle Ages, which specified literal “eye for an eye” justice. Talionic law developed in societies that lacked stable state institutions, like Iceland and early England. As such, it was embedded in strong extended-family institutions that used tit-for-tat strategies to keep order.

The traditional understanding of “eye for an eye” justice is that it is retributive, that is, that its motivating principle is punishment of the wrongdoer, pure and simple. Miller, however, makes a persuasive case that such systems are actually restitutory, that is, aimed at making the victim whole. In that sense they are much more humane than much contemporary criminal law, which ignores the victim and unproductively locks away criminals. An excerpt that makes the argument in a nutshell:

Your book argues that we often use the term “eye for an eye” to describe a harsh kind of justice from the past. But talionic societies could be said to put a higher value on human life and the human body than we do. They were much more committed to finding the exact worth of body parts and lives. So, let’s say you poke out my eye…

Then, instantly, my eye becomes yours. To get the value exactly right, we say an eye is worth an eye. You have a right to my eye. Now you can say to me, “I’m going to take your eye.” Then I’m going to say, “Hey, what would you be willing to accept instead?” It becomes an initial bargaining position.

If you want victims to be more highly valued and you want real, adequate compensation, this is how to do it. Now if I offer you what some lousy insurance company says your eye is worth — say, $100,000 — you’ll say, “No way! I would never have let you take my eye for that.” Instead, you can be sure I’ll put the same value on not losing my eye that you would have put on yours, and I will pay you that amount to keep my own eye. How about $5 million? Let’s start there. And we’ll bargain it out.

The book mentioned is this.

So how about it – should we return to the lex talionis?

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