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Chapter Two - Squaring the Circle: The Justice of Punishment
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38 Chapter Two Squaring the Circle: The Justice of Punishment U N L I K E D O S T O E V S K Y ’ S attitudes toward specific forms of punishment—such as corporal punishment and the death penalty, which have received some attention in Dostoevsky scholarship—his positions on broader questions have remained virtually unexplored. In this chapter , we will survey Dostoevsky’s writings to see what they may reveal about his views on two problems in particular: commensurability and the moral basis of punishment. What I want to suggest with regard to the first is that Dostoevsky does not believe in the possibility of achieving ideal equivalence between wrongdoings and responses to them. For Dostoevsky, there is never perfect precision in balancing the scale of legal justice. At the same time, Dostoevsky does not reject the need for punishment. And this poses another question: how does he justify imposition of punishment under law if he believes its individual instances to be inevitably plagued by intrinsic imperfection ? In this respect, I hope to show that for Dostoevsky the moral foundations of punishment entwine two sets of considerations. On the one hand, an ardent advocate of personal responsibility, Dostoevsky believes that people ought to be answerable for their moral behavior. In other words, he supports punishing the wrongdoer simply because it is a just thing to do. In contemporary philosophy of punishment, this position answers to the name of retributivism. Following Kant, contemporary retributivists believe that justice demands that offenders suffer for their crime and that, in the words of one theorist, “the deserved punishment is intrinsically good.”1 On this view, judicial punishment is a categorical imperative, required and justified as an end in itself. Whatever other goods punishment may produce, whether for the criminal (for example, reformation) or for the society (for example, deterrence), is irrelevant to its justification. On the other hand, despite Dostoevsky’s firm belief in personal responsibility , his insistence on the need to punish criminal behavior, and even his occasional advocacy of harsh punishments, his position is hardly that of a strict retributivist. Unlike strict retributivists, who view punishment for a committed crime as a good in itself, Dostoevsky is nearly always concerned Squaring the Circle 39 with consequences. More specifically, he sees punishment as an instrument of moral betterment both of the criminal and of the community. In this chapter’s last section, I argue that this persistent concern with consequences has some interesting implications for widely held beliefs about Dostoevsky’s ethics. Whereas the prevalent position holds that Dostoevsky firmly rejected appraising morality of actions by reference to their consequences, his ideas about punishment present a challenge to the totalizing view of his ethics as strictly deontological. THE HOUSE OF THE DEAD AND THE PROBLEM OF COMMENSURABILITY When Gorianchikov evokes the notion of Christian brotherhood to argue against corporal punishment, he echoes a commonly advanced claim that the existence of two different scales of punishment—one for privileged and another for nonprivileged groups—is indefensible in a Christian state. As Prince N. A. Orlov put it in a March 1861 note addressed to Alexander II, “Neither Christian equality nor Christian brotherhood can exist where two men who committed the same misdemeanor stand in one chapel, but one is arrested and the other is birched.”2 In mobilizing the rhetoric of Christian equality, both Orlov and Gorianchikov may appear to argue for the equality of punishment and against the use of it as an instrument of social differentiation . But as we will see below, for Dostoevsky, the mere elimination of the two different scales of punishment does not yet offer a solution to the problem of punishment’s inequality. That punishment in imperial Russia was used not only for its more commonly acknowledged functions, such as retribution or deterrence, but also as a way of demarcating social classes is the argument of the historian Abby Schrader. In Languages of the Lash, a history of corporal punishment from the eighteenth century to the late imperial period, Schrader shows how Catherine II’s project of clarifying social order and cultivating the elite necessary for administering the affairs of the state impacted Russian penal politics for the next hundred years. Catherine’s 1785 Charter to the Nobility and Charter to the Towns exempted certain social groups from corporal punishments and thus created two parallel “ladders” of penalties—for privileged and nonprivileged groups.3 In subsequent decades, both Alexander I and Nicholas I gradually abolished...