I once heard someone maintain something absolutely absurd: A life in prison is just the price for committing murder, he said, and you are "free" to commit murder as long as you are willing to pay that price. Clearly this is crazy. A life in prison, execution—these are not "prices" for committing murder; they are punishments. But what exactly distinguishes a "price" from a "punishment"?
This is something that I’ve long intended to think about, but as I was working on my paper for ISUS X I found myself being forced to say a little about it and I wasn’t quite sure what I wanted to say. Or at least I wasn’t quite sure that what I wanted to say works. I have now received a little feedback on a draft of my paper from my co-panelist Jonathan Riley, at Tulane, and he has me even more worried about the line I want to take. So I am turning here for help.
In my paper, I assert that we are sometimes justified in punishing people for actions that are not morally wrong. I use punishment here in the "narrow" sense of externally-imposed punishments, including (but not limited to) legal punishments. (This clarification may seem unnecessary, but my ISUS session is about Mill, and part of what is at issue between the panelists is whether Mill counted guilt as a punishment.) I give the example of a penalty applied to someone who pays her taxes a few months late. At some point late payment shades into nonpayment, which is morally objectionable, but payment that is only a few months late seems to me to be morally okay in most instances, assuming that you pay the penalty (and the interest) that you are assessed. Still, it would certainly be inconvenient if too many people did the same thing, so using a penalty to discourage late payment seems eminently reasonable.
In the paper, I anticipate the response that the tax penalty is merely a price for late payment, not a "real" punishment. I don’t necessarily disagree with this. I do, though, find it very tricky to distinguish the two. What is the difference between the tax penalty and something like a fine for littering, for instance? The latter seems clearly to be a punishment, albeit a mild one. Both, though, are forced extractions of money by the state for the purpose of deterring people from a course of action, and the tax penalty may easily involve more money than the fine.
I claim in my paper that the difference is that in the case of the litterer, but not the late payer, we think that the financial penalty ought to be suffered in addition to guilt. Even if this answer is right, it may not go far enough. But in addition to asking for general thoughts on the punishment/price distinction, let me ask a more specific question. My third ISUS co-panelist, D. G. Brown, claims that Mill analyzes what it is for actions to be wrong in terms of the pro tanto justifiability of externally-imposed punishments. (The action is wrong if punishment is pro tanto justified, in other words, even if there are reasons not to follow through and impose the punishment.) If the tax penalty counts as a punishment, then this analysis entails that it is wrong to pay your taxes late. Is it possible for someone with this understanding of what it is for actions to be wrong to draw the punishment/price distinction in a way that is plausible and that lets the view avoid this implication?
I’m hoping the answer is no.
HI Dale –
This is just my first impression, but I think you ought to hold the line on late tax payments. It strikes me that though we are unlikely to feel guilt about paying our taxes late (within reason), and that it is not morally wrong to do so, so long as we pay the penalty, this is still a punishment. In Lawrence, when you park your car downtown in a lot past the two hour limit, you get a $2 ticket. I don’t think it’s immoral to park your car downtown longer than two hours. I don’t feel guilty about doing so, but nonetheless it’s a punishment. I guess I share your skepticism that a line can be drawn in these cases, but I think that gives us reason to not draw a line.
That’s a nice question. Here’s an initial suggestion on how to make the punishment/price (cost) distinction. It seems to be a logical feature of paying what it costs to do X that, if the price is paid, X is permissible to do. Once I’ve paid the price, for instance, I’m permitted to drive off with the car. Indeed, other things equal, it would be wrong to prevent me from doing so. But this is not true of punishments. Suppose I’ve done my time in prison for stealing car C though, in fact, I didn’t steal C. It’s not true that, now that I have endured the punishment for stealing C, I’m permitted to drive off with C.
Mike-
I assume that you are referring to moral permissibility and legal permissibility. (Could the double jeopardy rule complicate your analysis with respect to legal permissibility? Is it sometimes legally permissible for you to commit crimes for which you were already wrongly punished, since you can’t be punished again for the same crime? Wasn’t there a movie with this plot a few years ago?) In that case, I think you are on the money in terms of the definitional difference between punishments and prices. But I am really most interested in whether there seems to be a more substantive way to distinguish them, one that might potentially help us get a handle on the moral permissibility of actions. Which means, obviously, that it can’t presuppose that we already know which actions are permissible. For instance, if I contend that the justifiability of a penalty for late payment for taxes shows that a certain view has the counterintuitive implication that paying your taxes a little late is morally wrong, it would be question-begging for a defender of this view to reply that the tax penalty is not really a punishment because paying your taxes a little late is morally permissible. This makes it too easy for her to avoid counterexamples. (By the way, I hope it is clear that I’m not criticizing any particular person’s views here, especially not those of either of my ISUS co-panelists. I’m criticizing a view that one of my co-panelists ascribes to Mill, but it isn’t necessarily a view that he wants to defend himself.)
if I contend that the justifiability of a penalty for late payment for taxes shows that a certain view has the counterintuitive implication that paying your taxes a little late is morally wrong, it would be question-begging for a defender of this view to reply that the tax penalty is not really a punishment because paying your taxes a little late is morally permissible.
That’s not so clear to me. Is it to you? Let’s agree that you can’t just assume some suitable theory of moral permissiblity and certainly you can’t just declare some action permissible. These are ad hoc and (likely) question begging manouvers. There is a (more or less) shared pretheoretical sense of what’s permissible. No doubt your opponent has to respect that, but not slavishly. She need not be begging any questions in advancing her position for permissiblity, even if she flouts some intuitions.
In any event, my intention was just to propose a way to distinguish costs and punishments. I don’t want to suggest that once you have those distinguished every disputed case of cost/punishment is easily resolvable.
I agree with Mike, our views about “costs” and “punishments” seem to come with different logics, different relations to other concepts. And Mike seems to me to have put his finger on one. Another might be that there is a trivial relation, determined by what the market will bear, between costs and payments (if it cost $2, pay $2 and it’s rightfully yours) but not so between punishments and crimes. Working out which punishment fits which crime is neither easy nor is it something we leave the market to price. We reason through punishments with reference to our other values in ways we don’t with prices and costs.
There are undoubtedly more such features — Elizabeth Anderson’s book Value in Ethics and Economics lays out many such parallel distinctions and so would provide a nice starting point for further research.
I don’t think what remaining qualms we might have over these distinctions indicates the begging of questions. Instead, it seems to me an indication that we metaphorically extend the notions in each direction, but that isn’t something that our analyses need to capture.
Your inquiry into a possible distinction between punishment and prices is complicated by the popular conception that one who has been punished has “paid his debt to society”.
It is also complicated by the justification of punishment as deterrence, both in the sense of imposing a cost on bad activity and in the sense of educating others to the seriousness with which the punished conduct is taken. The idea of deterrence doesn’t fit neatly into either package — price or punishment. What if a penalty is justifiable because it is harsh enough to express social disapproval but not sufficient to deter such conduct? To a utilitarian, the punishment is wrong because it imposes harm to the agent without adequate gain. Similarly if the punishment is overdeterrent. Looks like you’re pricing conduct, doesn’t it?
Good luck
djt
My initial thought is that punishment has an expressive function – it’s how society says “We’re mad at you for doing that” – while prices have no such function. If we think of guilt as the first-person analogue of third-person anger, that ties together punishments and guilt, without tying together prices and guilt. Since whether and what society is expressing, in its laws, is a rather vague matter, we should anticipate that the punishment/price distinction will be a vague one. But a rough criterion would be whether the average citizen, on finding out that you did X and suffered the legislated Y as a result, holds some hostile or negative attitude towards you for doing X. If so, Y is a punishment; if not, it is a price. Execution for murder is clearly a punishment, paying a penalty for taxes paid late is clearly a price, and paying a fine for parking in a handicapped zone is sort of vague.
Dennis,
Regarding the common saying, “he has paid his debt to society,” I think it can be given a rather straightforward moral interpretation. By paying one’s debt, one returns oneself to equal moral standing – one has regained one’s moral dignity – by undergoing the punishment. This seems to me to be what people are saying when they use the phrase (and I think most would look at you rather strangely if you tried to analyze it terms of market exchange). Saying that one regains dignity through punishment is different than saying that the action for which one is being punished is permissible now that one has paid one’s debt.
I don’t quite understand why deterrence is an issue for a punishment/price distinction based on moral permissibility. We might have all kinds of reasons for creating deterrents as a matter of public policy. We deter people from paying their taxes late by imposing fines and we deter people from driving drunk by revoking licenses. We would regard receiving a fine in the former as a cost and losing one’s license in the latter as a punishment – and this is plausibly explained by the moral status of the two actions. The distinction may be difficult for a utilitarian to explain, but given its power to successfully demarcate what we intuitively regard as costs and punishments, this would then be a problem for utilitarianism. (I say this being a utilitarian.)
It may also be worth noting that one group who has been attracted to analyzing criminal punishments as costs are those who do economic analysis of law. Typically, these approaches attempt to “explain” various legal distinctions between types of sanctions strictly in terms of non-moral economic concepts. It is interesting that as soon as background values fall out of the picture, one is tempted to view all legal sanctions as costs.
Dale –
Great topic, and I don’t have anything very substantive to add. But have you looked at David Lewis’s ‘Do we believe in penal substitution?’? (very short, in Phil Papers 1997, reprinted in his ‘Papers in Ethics and Social Philosophy’) He grapples with an issue that I think may be closely related.
Offhand, it seems plausible to me that cases in which we are morally comfortable with penal substitution are those in which we conceive of the cost as a price, and those in which we are not morally comfortable with penal substitution are those in which we conceive of the cost as a punishment. In moral (if not always practicable) terms, it’s OK for someone else to pay your fine if we’re imagining it as a price, but we expect you to pay it yourself if we’re imagining it as a punishment. For whatever that’s worth!
Here’s what Hart says is the general justifying aim of punishment (in “Punishment and Responsibility”):
I like this analysis, and I think it answers Dale M.’s question essentially the way the first commenter, Dale D. answered it: the late-payment penalty is a punishment. What might be confusing things is that the nature of the offense is different. But this, I think, reflects the distinction in justification between systems of civil and criminal law rather than between punishment and prices. While civil law sets out a system of property rights that defines private rights and liabilities, criminal law aims at deterring persons from using the wronging of another as a means to an end (thanks to Arthur Ripstein for this way of putting it). So, when I fail to fulfill the terms of a contract, I can be held liable for this as a matter of civil law. But, if I intentionally deceive the other party in forming the contract in order to achieve some end, this is fraud, a criminal matter.
To say that a punishment is a “price” for the crime, implies that the crime is an acceptable act in some way. In legitimate transactions both parties are satisfied in the transaction. When one of them are not satisfied, is when we start getting into the morally problematic (e.g. a destitute person turning to prostitution may not be happy prostituting themselves, but they do it anyways… As opposed to someone who is not destitute and prostitutes themselves perfectly willingly).
If I say that jail time is the price for murder, then it implies that if I want to murder, it is acceptable, as long as I pay the price. But the point behind the moral condemnation of murder is that it is NOT acceptable under most circumstances, including when you are willing to “pay” the legal punishment for it.