Punishment and the Spirit of Democracy

George Kateb Punishment and the Spirit of Democracy P U N IS H M E N T TH A T IS A D M IN IS T E R E D D IRECTLY BY T H E STATE IS ONE o f those subjects that are hard to pin down. There is no theoretical defense of the reasons for punishm ent that wins common assent. All the principal justifications for it have a long history, but their inter­ relationship and their comparative im portance differ from thinker to thinker. In any given analysis, furtherm ore, some justifications may even be ignored or rejected. The explanation and defense of punish­ m ent rem ain open to dispute, and probably always will. Strong intellec­ tual passion, however, does not account for such dispute. In my opinion, punishm ent is a grave subject, but I do not think th at it arouses an intense intellectual response that is com m ensurate w ith the gravity. The core of punishm ent is the deliberate infliction of pain on a hum an being. Should there be no m oral puzzlem ent in the veiy fact of deliberate infliction of pain, even w hen the pain is not corporal, and even w hen the crim inal has acted violently and perhaps odiously, though often w ithout deliberation? (I will speak mostly about punish­ m ent as pain, but som etimes about capital punishm ent, too.) “W hat shall we do w ith you now th at we have caught you and found you guilty?” should rem ain, I think, a real question. The answer th at we have of course made you innocuous so that we can inflict pain on you is perem ptory but evasive. Perhaps there are alternatives to punish­ m ent. But if punishm ent m ust rem ain the practice, w hat are good enough grounds for keeping it? By good enough grounds, I m ean a social research Vol 74 : No 2 : Summer 2007 269 defense that avoids im plicating its advocates in the possibility of seri­ ous immorality. My assum ption is th at the pain of frustrated desire, w hen a person is deterred from crime (or any wrong), has no m oral weight, but the pain of punishm ent for a criminal deed should certainly trouble the m oral conscience. More than almost any other writer, Bentham would not let us forget the elem entary fact that punishm ent is deliberately inflicted pain, and that such pain should always raise m oral questions. But m ost who w rite about punishm ent are unhesitant in w anting to see it inflicted, and some are even eager. The will to punish seems to precede any theory of punishm ent. People reflexively know it is right to punish, even though m any of us cannot quite say why. We may even think that punishm ent is self-evidently the right response to lawbreaking and does not need and should not be given a justification. We are inured to eveiy kind of violence but that of the criminal. Perhaps m any of those w ho write about it feel secure in their innocence and possessed of an invincible sense that they will never have to endure it. A certain coldness or deadness frequently marks the tone of discussion; m ore commonly, it is dullness, as if dullness were a sign of intellectual probity, instead of a necessary philosophical risk that could be m et and successfully overcome. There are a few noteworthy exceptions; Mill and Nietzsche give their whole m inds to the subject, and so does Bentham in his pained irony. But for m ost writers on the them e, it is just another subject; and as just another subject, it lends itself to the pleasant pros­ pect of continuous analysis, w ith no end in sight. The dispute over justification is confined to a not-large num ber of considerations, and often the argum ents are comparatively brief, or should be for w hat they have to say. Kant’s few pages on retribution in The Metaphysics ofMorals, for example, do not argue so m uch as they assert...