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To hurt with love…

Notes on: Jean Hampton (1954-1998), “The Moral Education Theory of Punishment”

Jean Hampton and educating evil doers

The late Jean Hampton proposed a moral education theory of punishment as an independent self-contained theory to replace retributivist, rehabilitative, and deterrence justifications. Her view seems to suffer the relative neglect Hume’s ethics does vis-à-vis Kant’s and Mill’s and for similar reasons. Quite apart from its merits and—despite my apparent criticism below—we think it has many, it reveals a great deal about the moral phenomenology of the feminine as well as throwing into stark relief its opposite: the prevailing, clearly masculine perspectives on the consequences of breaking rules. Hampton addresses not just state punishment but punishment within such institutions as the family. It is clear the latter is her model for the former.

Her vision does not have the logical and moral clarity of retributivism, nor the naive tidiness of utilitarian solutions. It is perhaps deliberately fuzzy and open to complexities of nuance that may boggle the minds of especially male thinkers on the problem of why we punish. These thinkers operate, like most of the criminals they theorize about, with fewer human resources to begin with. They are missing the full complement of human sensibilities. It never seems to occur to them that the men who break the law and those who don’t are, as men, united in needing the law in the first place—and that this is an all important fact from which any moral (and, perforce, punishment) theory should start. It also helps explain why criminal justice systems are completely irredeemable travesties when they attempt to deal with female criminals. They were never designed with them in mind.

Hampton may even completely misunderstand criminality the way a mother may her son’s obstreperousness. That said, she is right. She is right if you are going to hold onto the hope that we can ever educate out of existence, even in some small measure, what is overwhelmingly a male depravity. I frankly don’t think most men share that hope because they know, or ought to know, something that seems to escape Hampton.


Notes and commentary

“Orders backed by threats” has been a common characterization by many philosophers of the traditional “rules of obligation” law of states. Justifying the “threat” becomes the task.

Law should solve problems of “conflict and coordination”. [There’s the rub.]

Hampton believes that morality while “not the same as law, should be the source of law” (footnote).

Deterrence must be part of the rationale in any punishment scheme—even Kant’s, see footnote. [In the footnote she cites a passage from Kant (Metaphysical Elements of Justice, Ladd trans., Bobbs-Merrill, 1965, p. 331) where he asserts autonomous freedom may need to be defended through law at the expense of the less theory-laden freedom of a hypothetical imperative. She takes this to mean that deterrence considerations were essential even to Kant: We may take away your two-bit freedom in order that you may learn to freely choose what’s really good for you. Kant may be inconsistent, and Hampton latches onto this to erode the self-sufficiency of retributivism.]

But an adequate theory of punishment must go beyond mere deterrence. Not to do so is to treat people like animals (Hegel). Example of the cow and the electrified fence. “Punishments are like electrified fences.” Why are these legal barriers there?

They are there to convey the educative message that the act punished is morally wrong and that is why it should not be done. The point ought to be to get beyond the pain-avoidance motive to a deeper understanding [assuming there is one] of why one should avoid the prohibited act.

Punishment ought to teach both the wrongdoer and the public in general the moral reasons behind the prohibition. Hampton is committed to an ethical objectivism: that there is a right and wrong and we can come to know it.

The educationist view is distinguished from the deterrence (utilitarian) view: the state (or the family) should educate people to choose not to engage in prohibited behavior. Using the criminal as part of a deterrence process is not acceptable from the moral education point of view. Desirable social goals are incidental. Punishment is something that ought to be done for the wrongdoer not to him or through his use.

…and from the rehabilitationist or punishment-as-therapy view: these are not about moral growth but about social adjustment. The educationist wants the good of the wrongdoer but disagrees with the therapy view about what is good.

The educationist is trying to communicate to the wrongdoer that something is amiss with his soul.

The important communicative function of punishment: in movies, the good guy who confronts the bad guy and explains why he is going to die, rather than simply shoot him in the back is sending a message to the wrongdoer and others. [Though the bad guy’s period of moral enlightenment is to be short-lived, presumably, a surviving audience partakes more productively in the enlightenment.]

The link to parental punishment is examined.

A caution that parental and other types of institutions peddling punishment are different in the extent and degree of moral teaching that each should promote. The less intimate the relation the less legitimate scope there is for appropriate moral correction. This point separates Hampton a bit from her co-theorist, Herbert Morris. (The state may be out of its correctional depth to address the minor moral faux pas—being a jerk, for instance, but perhaps the family or a circle of acquaintances would not.)

This is not paternalism in the sense Mill was worried about. The educationist is not concerned mainly about what laws are made but how the wrongdoer is treated once they are broken.

The educationist can remain agnostic about which ethical theory motivates the making of laws. [This point reveals the extent to which feminism is ultimately agnostic about which theory men choose to profess so long as they manage to instantiate one or another.]

To those who would complain of state moralism, Hampton replies we cannot avoid it when the murderer is skeptical of our deeming his behavior objectionable.

The germ of an argument against anarchism. [The educationist theory places a special burden on the laws—that they be moral—in order that they may legitimately be inculcated in the criminal. The state gets it legal authority from its moral authority, Hampton seems to be saying. And in this she is profoundly correct. Hence, the importance of getting the theory right.]

Civil disobedience explained: the state’s legal authority to punish must be respected in order to impugn its moral authority, to make the disconnect between the two glaring. [Cf, Socrates in the Phaedo or Martin Luther King’s letter from the Birmingham jail.]

The educationist theory clearly places an upper bound on the extremity of punishment: it cannot degrade the autonomy of the wrongdoer nor incapacitate his freedom to accept moral teaching.

Capital punishment is ruled out by the educationist.

But how can any inflicted pain be justified under the educationist view? What if the only way a particular criminal would accept a moral lesson is through a pleasurable experience? Would then that be an educationist requirement? [This situation would never arise regarding male criminal impulses. Men may very well come to enjoy being punished, but they can never enjoy being taught a moral lesson. Conceivably, this might indeed be possible with female delinquency. The attraction of rule-breaking (and rule-making) is intrinsic to his constitution. It ought to be needless to say, though I fear it is not: she is usually pushed toward, not pulled by, criminality. Her relative success at steering clear of temptation or resisting it, if unavoidable, stands in great contrast to his courting every opportunity conducive to it. Hampton, I fear, doesn’t quite see this.]

Punishment, for the educationist, is defined so that it skirts these questions: “disruption of the freedom to pursue the satisfaction of one’s desires.” [How is that to be construed as not a violation of autonomy?]

Perhaps it is too general but something along those lines may be the point from which the educationist begins. [The autonomy in question is of the Kantian sort.] Punishment is linked to pain because of a special force that must be conveyed along with the information that certain actions are wrong. The special force, the exclamation point, as it were, in “don’t!” The disruption must be seen as painful in some sense. [Here, Hampton may be suggesting, probably inadvertently, that punishment be in a sense crueler than we typically make it. Assuming our criminal is a man, as he usually is, it can be more frightening to him to be genuinely taught a moral lesson than to be subjected to the rack. Something like this is behind the reluctance we seem to have for castrating the recidivist rapist. We seem to think a lifetime of incarceration or community censure kinder than this affront to his manhood—however transitory the pain—involved in the physical operation. (We do it without apparent qualm to animal companions even when we dearly love them—even because we dearly love them.) What would more eloquently tack on that exclamation point than this punishment, tailor-made to his vulnerability? This would only rob him of a choice he had shown himself incapable of making—choice here meaning autonomous choice (Kant), not just the absence of constraint (e.g., Ayer). On the one hand, it seems the kindest thing to do for him, yet paradoxically also the cruelest. Why? because he values (or we value for him—how can that be?) something far greater than a painless existence. We don’t value something in him—the plain fact of the matter is—he doesn’t have. Rather, it seems, because he is a member of species that theoretically does.

The procedure could still be viewed as autonomy-respecting “punishment” because we would thereby show our extreme displeasure with his behavior by wilfully squelching our own revulsion at no small moral cost to ourselves (always a genuine sign of how solemnly offended we are). After all, why does a parent say to a child “this is going to hurt me more than it will hurt you” if he or she doesn’t really mean it? (The kid is supposed to think: I have really hurt someone who loves me, see how low I have sunken? and this is supposed to have effect.) Remember, punishment is supposed to do two things: convey the depth of our displeasure and stir the soul of the wrongdoer. Autonomy is being respected in the sense that we grant the latter has a soul whose abuse is causing us great distress. If the latter has no soul to stir or a thoroughly decrepit one, if he says, “Ok, sure!”, we do our part, at least. We are barred from ever doing anything but inferring what goes on inside him.

To drop all inhibitions about teaching a moral lesson could add much to our arsenal of punishments that we presently exclude. The possession of autonomous powers would never be an indefeasible presumption. Autonomy would be respected until we learned, or the malefactor had proven, he had none to respect. Then he would revert to the status of moral patient: a child, for whom we may be excused for making some momentous decisions. How many dearly beloved pets do we castrate with scarcely a qualm? How many women have been given routine ovariectomies as part of hysterectomies for far less cause and with far less hand wringing despite the growing evidence that such operations have profoundly negative side effects at least on a par with any orchiectomized male’s loss of desire for masturbating? Perhaps we feel more sorry for him than for her because her sexual pleasure is more diffuse and less concentrated in this one paltry exercise? But then we should console ourselves with the thought that the business is not without compensation: a “fixed” man, like a fixed tomcat, may live a longer and, in all ways but one, fuller life.

(You may be thinking: but these women agree to this operation; it is not being imposed upon them. But why have they agreed so easily? 600,000 annually. Why has the medical establishment, until very recently largely male dominated, not taken seriously the loss of sexual function in women as a significant counterweight in decisions about what is an optimal balance of benefit and loss in such an operation?… Because it was not their sexual function in the balance and because—and in this they may be right—her sexual function is not so narrowly centered on this physical structure, hence making it as valuable to her, as his corresponding one to him… The philosophical point here is the differential valorization of autonomy. It drives moral decisions for better or worse, and we risk serious injustice in not being clear when this is happening. There is no doubt a deep connection between the near sacred status of automony for him and his specific sexual phenomenology.)

…and in this way, we might justify any lesson-giving mechanism our miscreant might survive: short of killing him…and that only because we cannot monitor his moral development in the afterlife.

The moral educationist seems to treat the delinquant as a child in the best sense. In the child one sees the germ of an autonomy to be respected. The only thing that keeps this from being seen as pure paternalism of the sort that bothered Mill is the element of concern for a future state of the child. Rather than violation of autonomy, it is rendered as preparation for that state when foreign intervention is no longer needed. But is this instillation of a capacity for self-policing not just as easily described as a more advanced stage of paternalism? Doesn’t paternalism essentially reproduce itself in this way? Kant’s way out of this cycle was anchored in the cultivation of a rarified feeling of respect for an abstraction: the moral law. The feeling that Hampton seems to be cultivating (and there is never one that isn’t being cultivated) seems to be a need for connection to others and a love for the behavior that entails. And, of course, this is a Weiningerian difference.]

Thus the wrongness of the act is emphatically communicated—though not yet its moral gravity. [The purpose of the painful disruption is to get the attention, shaking the kid by the shoulders, as it were, in preparation for a lecture.]

The painfulness of the punishment must also communicate the suffering of the victim to the wrongdoer, say “this is what it feels like”.

But exactly how punishments are to be shaped to fit crimes remains a difficult question.

What about punishing those who clearly need a moral education but have committed no illegal act? Hampton says, yes, they deserve moral education but the state is not the proper authority to carry it out. [Who then? The problem is especially acute when the morally needy in question are representatives of the state itself with all the apparatus of law at hand to manipulate and the stakes extreme in terms, not of laws broken—for they are too intimate with the laws, only the truly stupid run afoul of them, but of faith and trust in the very point of a state. The consequences are so extreme that if moral decay meant anything only such persons as these would ever face execution. I mean those in positions of power who abuse them. By contrast, the common murderer’s devastation is vastly more circumscribed. ]

Educating the criminal and society are “inextricably linked”. So we cannot punish the legally innocent to morally educate the rest of a community (as some utilitarians might).

Is morally educating criminals really feasible?

Probably not all, but we must be committed to respecting the autonomy of all and consider none “hopeless.” And at least others, in the community, may learn.

Because the criminal must come around morally of his own free will, Hampton rejects manipulable and manipulating parole boards. Sentences must be determinate.

Besides, the “wrongdoer” might be civilly disobeying, in which case repentance is not going to be forthcoming, nor to be expected. The state cannot insist on repentance and respect the autonomy of the wrongdoer.

The wrongdoer may require the full duration of the punishment as purification for his guilt and for his reconciliation with society.

But there could be extraordinary cases where a wrongdoer undeniably shows remorse and moral reformation. In which case, Hampton may condone a pardon. Such a person’s moral education will have been accomplished.

Does moral education presuppose the truth of retribution?

Hampton wants to avoid the retributivist’s difficulty in explaining the notion of desert. She does not want to rely on this concept if it is not ultimately about communicating the wrongness of an act. [Here she shows herself a true feminist since the notion of pure retributivism, of unmitigated tit-for-tat, of the balancing of a certain abstract scale, is fundamentally and characteristically male.]

Retribution is unchristian. She cites scripture.

[No one deserves evil. So if punishment is to be justified, it must be construed as a good. At the heart of her theory is the idea of punishment as inflicted by one who loves the wrongdoer: a parent.]


A final word on what we deserve…

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