Heeding my own call for a re-examination of consequentialist theories of punishment, and responding to Bloomfield’s posts here and here, it might make sense to examine how the radical dichotomy of consequentialist and retributivist accounts came about. In the Aristotelian world order, which dominated European political thought into the 17th Century, humans were “political animals” and as such they ontologically belonged to a social order, an order within which each had his or her predefined place. Society was the human biotope. It was unthinkable as against nature for humans to live without or outside of society. Those who did, were either wolves or gods. (Not surprisingly, the Werewolf, or man-wolf, has its origins in Aristotelian substantive social ontology.) Against this backdrop, the critical question of legitimacy was one of justice, that is, whether an existing social order was good or bad. Hence Aristotle’s taxonomy of political systems: tyranny, aristocracy, democracy, oligarchy, ochlocracy. Whether there should be society at all, was beyond the frame of reference of Aristotelian political thought. The substantive social ontology, in which injustice was being out of place had wide-ranging implications for a theory of punishment. Most significantly, there was a qualitative, ontological difference between the criminal and everyone else. The criminal was wicked by nature. The crime merely revealed that nature for everyone to see. And so, the through his crime, the criminal literally expelled himself from society. Crime, and punishment as a reaction to the crime, therefore did not, strictly speaking, take place within society; rather, the crime was evidence that the borders of society had been drawn too liberally, mistakenly including the criminal. The response was an exercise in downsizing society, that is re-drawing the borders of society under exclusion of the criminal. Once properly excluded, the criminal could be dealt with in an instrumental manner like any other natural (that is, extra societal) object. He could be killed, mutilated, maimed, brandished, locked up, sent into exile, etc.
The collapse of Aristotelian substantive ontology in the late 17th Century (brought about by Galileo, Newton, Leibnitz, and others), also led to a collapse of the corresponding social ontology and its theory of punishment. Thomas Hobbes was the first to transpose the revolution in the physical realm to the social world. As the physical world was reduced from a rich, qualitative ontology to a monistic concept of matter in motion, its human inhabitants were stripped of their various (inherently unequal) essences, which pre-defined their proper position within society. Hobbes re-conceptualized humans as trivial machines, that is, complex, causally determined automata, programmed to ensure their individual survival by rational means. One of the many implication of this seismic shift in the concept of the subject was a sudden urgency in the search for new sources of political legitimacy. Such new sources could no longer be found within the existing social order. And so, in the mid-17th Century, Hobbes posed the radical question, from which all modern political thought embarks: “Why have a government at all? Why not anarchy?” This question was only intelligible against the backdrop of the new, radically simplified social ontology, in which the individual, for the first time in Western intellectual history, logically and genetically preceded the state. The modern state, as Hobbes saw it, is composed of individuals, and it exists to serve one specific, shared objective of each of such individuals: the establishment and maintenance of peace. Beyond that, no shared objectives could be presumed. Difference replaced unity as the starting point for political thought. With that, the semantics of political legitimacy changed from a qualitative question (”Is the government good or bad?”) to an instrumental one (”¬Ä¬úIs the government effective in preserving the peace?”). Seen from the vantage point of the modern individual, the legitimacy of the government came to hinge on a comparison of costs and benefits. As long as the benefits of having a government outweigh the costs, including opportunity costs, it is rational to have a government. Once that bottom line changes, the government has lost its legitimacy. The costs of government are measured in the restrictions that it imposes on the exercise of any one individual’s freedom of action. Therefore, at the heart of each individual’s interaction with the state is an exchange. The individual gives up some measure of freedom of action (for example, not to steal, having to pay taxes) in exchange for a greater measure of freedom of action (for example, through the existence of secure property rights and the absence of violence). The qualitative summum bonum of old gave way to the quantitative maximum bonum. Freedom (that is, negative freedom or freedom from), replaced justice as the central criterion of legitimacy.
As the new monistic ontology was unable to account for qualitative differences between individuals, the exclusion of the criminal on ontological grounds was no longer plausible. The criminal did no longer appear as qualitatively different from the law-abiding citizen. This reconstitution of the individual as a rational cost-benefit calculator opened the door to consequentialist accounts, such as Beccaria’s On Crimes and Punishment. It also paved the way for theories of punishment and political legitimacy built on the idea of a social contract. (Negative freedom as the source of legitimacy is the common root of consequentialism and social contract theory.) Social contract theories, while radically different from political Aristotelianism in their philosophical foundations, quickly recreated the effects of exclusion on ontological grounds by expelling those in breach of the social contract from society. (Hence, one of the recurring problems of social contract theories is that, taken to their logical extreme, there is only one crime, the breach of the contract, and one punishment, the termination of the contract.) Therefore, little changed in practice. Criminals were still excluded and treated accordingly (that is, brutally). In other words, the first seismic shift from the Aristotelian world to that of the modern economic man, did not yet bring about the sharp divide between consequentialist and deontological accounts. It took another shift of similar magnitude and consequence to arrive at the sharp division that characterizes and haunts modern ethical theory until this day: the discovery of universal rationalism. (More on that in a later post.)
[tags]Hobbes, Aristotle, punishment, anarchy[/tags]
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