The Passions of Law

Chapter Five. Moral Epistemology, the Retributive Emotions, and the "Clumsy Moral Philosophy" of Jesus Christ

In her opinion the troubles in life were started by people who never looked into their own souls. Oscar Hijuelos, Mr. Ives’ Christmas Introduction Nietzsche’s writings have a remarkable capacity to trouble the soul, and I have recently found my own soul troubled by reflection on his remarks on retribution as a theory of punishment, a theory that I have long endorsed and defended.1 Nietzsche does not, of course, give intellectual arguments against the claims of retributivism—arguments that could perhaps be met by counterarguments . Rather, he offers a diagnosis of those who favor punishment on such grounds—speculating that, for all their high talk about justice and desert, they are actually driven by a variety of base and irrational passions —malice, spite, envy—passions for which Nietzsche uses the French noun ressentiment. At their best, retributivists—with their scorekeeping and their tit for tat—have the sensibilities of accountants: “their souls squint.”2 At their worst, retributivists are simply cruel.3 Small wonder, then, that Nietzsche offers the following counsel: “Mistrust all in whom the impulse to punish is powerful.”4 Chapter Five Moral Epistemology, the Retributive Emotions, and the “Clumsy Moral Philosophy” of Jesus Christ Jeffrie G. Murphy  I see in myself, alas, a person whose impulse to punish has been—at least in some cases—very powerful, and Nietzsche has caused me to mistrust myself and the abstract theories I have been inclined to use to rationalize that impulse. In this essay I share with you the nature of my mistrust.5 In the main, I shall be focusing on Michael Moore’s widely anthologized and justly admired essay “The Moral Worth of Retribution.”6 In that essay, Moore takes seriously the Nietzschean challenge to retributivism and argues that this challenge can be successfully defused if only we draw the proper distinctions. In the course of his essay, Moore seeks to explore the use of emotions in moral epistemology, arguing that some emotions are epistemicly reliable— pointing us in what is morally the correct direction—whereas other emotions are epistemicly unreliable—pointing us toward moral error. He grants that if the retributive urge must be grounded in the family of base passions that Nietzsche labels ressentiment, then retribution is indeed undermined . He then argues that retribution does not have to be so basely grounded but should be seen as grounded instead in the rational and good emotion of guilt. In what follows I shall argue that Moore’s attempt to defuse the Nietzschean challenge fails. I think that many of his general points about emotions and moral epistemology are mistaken and shall argue that guilt fares just as badly as ressentiment as an honorable emotional basis for retribution. I shall also argue that the main value of Nietzsche’s challenge emerges if his claims are interpreted as what might be called lessons in moral humility —lessons that (ironically enough) are similar to those found in the famous New Testament report of Jesus stopping the stoning of an adulteress by saying, “He that is without sin among you, let him first cast a stone at her” (John :).7 Moore ridicules this remark and characterizes its use by Jesus, in the context of punishment, as “pretty clumsy moral philosophy.”8 Against Moore, I shall argue that the remark is not clumsy at all but is, rather, deeply insightful and deeply cautionary. I will also suggest (another irony) that a version of this same insight may be found in the ethical writings of that arch retributivist Immanuel Kant. Moral Epistemology and the Emotions In introductory logic we warn our students against committing the genetic fallacy—the fallacy of thinking that the falsity of a proposition can be  j e f f r i e g . m u r p h y demonstrated by a causal claim concerning the origins of the belief in that proposition. It might be tempting to dismiss Nietzsche’s challenge to retributivism as an instance of that fallacy, and Moore is correct in seeing that this move would be too hasty. It is, of course, logically possible for a proposition to be true even if the person believes that proposition for a variety of suspect reasons—e.g., retribution could be the correct theory of punishment, people could really in justice deserve the punishment they receive, even if those advocating their punishment on retributive grounds were motivated not by justice but by...