Punishment and proportionality

A: So you’re saying if I allow for any punishment, I have to allow for every punishment?

B: Exactly, though you left off my insistence that I was speaking in principle.

A: So if I allow any punishment in principle, then I have to allow every punishment in principle.

B: Now that’s exactly right.

A: But that sounds as ridiculous and morally repugnant as what I said before. If I allow you to give parking tickets I have to allow you to flay people alive?

B: In principle?

A: Yes, fine, I have to allow in principle that you can flay them alive?

B: Right.

A: That’s nonsense.

B: Isn’t punishment just giving someone what’s deserved?

A: I guess.

B: And by “deserved” you mean greater punishments for greater crimes and lesser for lesser?

A: Yes.

B: But the only limit you could put on this would require saying that there is a limit to how great a crime could get. Is there any such limit?

A: No, crimes can get worse without limit. But there has got to be some other limit that kicks in.

B: Like what?

A: At some point trying to proportion the punishment to the crime will require us to be cruel and inhuman.

B: Based on what you’ve agreed to, this is the same thing as saying “At some point justice no longer becomes possible”.

A: Right.

B: And it becomes impossible because it is no longer a virtue, but is cruel and inhuman?

A: Right. Giving the worst offenders what they deserve would mean breaking them at the wheel or flaying them alive, and asking someone to do that isn’t just.

B: But what you’re saying is that at some point justice is not a virtue, and this is nonsense. I can understand some amount of drinking that is no longer a virtue, but not some amount of temperance that fails to be.

A: Why can’t there simply be limits on justice? Why assume that human justice is infinite, or that it has an answer to every problem? Why doesn’t this place in principle limits on what we can do?

B: You can’t just assume that limits like that are in place.

A: Fine, I’ll argue for them. Any principle pushed to extremes distorts the very virtue it once gave rise to, and the principle of proportionate punishment is just such a principle. QED.

B: Is that true of a principle like “don’t kill the innocent” too?

A: No, that seems less like a principle and more like a tautology. “Innocent” just means “those who should not be harmed”

B: That’s its etymology, sure, but there’s probably the same thing between just or fair and proportionate.  What you call “tautology” I just call insight.

A: That might all be right, but I can’t get past the idea of proportionality only working within limits, even if I don’t know what the argument looks like for it. Crimes that are too unusually cruel simply can’t be met with the cruelty they deserve. There is some in-principle limit on how far one can push cruelty. The line won’t be drawn everywhere equally, but it has to be somewhere.

B: So the limits of proportionality would be historically variable?

A: Right. So maybe when the murder rate was astronomically higher in the Middle Ages (didn’t Steven Pinker prove this somewhere?) then racking and burning wasn’t beyond the limits. Who knows, maybe the limits were all but unreachable. But now it’s at least arguable that deliberate killing is so rare that even state killing is beyond the in-principle limits of how far punishments can go.

B: You want to argue that certain punishments were once right in principle but now no longer are, based on limits to proportionality that are somehow measured by what is cruel and unusual by variable social standards?

A: Yes. Proportionality has an in-principle limit by what is cruel or unusual, but what falls under this description will be variable.


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