Restitution, Instruction, and Retribution

First off, my apologies for missing the past few days.  I was out of town and didn’t have posts lined up in advance.  Today’s post expands a bit on a conversation I had with someone while I was away.

This post is about the concept of punishment whether legal, familial or otherwise.

Generally speaking, punishment serves some combination of three functions.  It can offer restitution to one person or group for harm done to them by another person or group.  It can be used as instruction for desirable behavior by coupling undesirable behavior with undesirable results. It can also be simple retribution–a person did something bad so they are “deserving” of having something bad done to them in return.

Note that there’s quite a bit of overlap in the three functions.  And any given punishment situation usually involves elements of all three.  For purposes here, I’m going to use “instruction” to specifically mean where the goal is for the person or group involved to learn not to engage in a particular behavior because they experience unpleasant consequences from doing so.  “Pour encourager les autres” is somewhat different.

Restitution is a fairly simple concept and to a large extent that’s what civil suits in law consist of.  One person’s actions impose an unjust cost on someone else–it can be a financial cost, physical injury, or simple inconvenience.  The court then decides if the cost was unjustly imposed, how much cost was, and orders the injurer to pay those costs to the injured party.  Note, that the “cost” isn’t just the dollar value of whatever the injured had taken but also the time, trouble, and aggravation of the whole thing.  “Pain and suffering” is also a cost (and generally the largest part of suits in which pain and suffering are factors).  But while it’s often not easy to determine what the cost actually is, the concept itself is straightforward.  You inflict a cost on someone; you reimburse them for that cost.

Instruction is also relatively simple in concept but a bit more complex in application.  Anyone who’s ever tried to raise children is familiar with the idea.  The children behave in undesirable ways, you inflict a punishment on them to discourage them from continuing that behavior.  Now, I’m not saying you have to beat your kids–punishments can take many forms and what works well for one child may be excessive for another and insufficient for a third.  But, particularly with younger children, simply explaining using logic and reason (never mind the dreaded “because I say so”) isn’t sufficient to change the behavior of most children.  Yes, Timmy knows that pain hurts and other people don’t like to be hit, but punching cousin Billy is so fun… But if Timmy learns that punching cousin Billy leads to consequences that Timmy doesn’t like (which could be that Billy punches back, or it could involve adult intervention) then there’s a reasonable chance that Timmy learns not to punch Billy.  Later, we can work on concepts like empathy and the moral issues involved once the immediate problem of Billy’s black eyes is resolved.

Then there’s retribution.  Consider, one person, call him George, kills another, call him Ed, and that this killing was what we, as a society, would call unjust (so not, a valid case of self-defense, for example).  The reasons George had to kill Ed were very specific.  They applied only to Ed and would not apply to anyone else such that George is no more likely to kill anyone else than a random person on the street would be.  What punishment, if any would be appropriate for George and why.  We can eliminate restitution as a justification (mostly; I’ll get to that in a moment).  There is no way to “pay back” the life that’s gone.  Taking George’s life doesn’t give Ed’s back (note:  I’m not arguing against capital punishment here, but against restitution as punishment in this case.) Likewise, “instruction” is not at play.  We’ve stipulated that George is no more likely to kill anyone else than some random person on the street and, so, we have no more reason to “teach” better future behavior to George via punishment than we would any random person on the street.

Does this mean that George should walk away unpunished?  We can’t “teach him a lesson” since there’s no lesson to be taught to him.  He can’t “pay” because there’s no way to give back what was taken.

(NB:  An interesting concept I have seen from time to time is indenturing or enslaving a killer to make up at least the financial loss that the killed individual represents.  So there can be a small element of restitution but it’s such a small part of the total loss involved that I’ll still proceed with the idea that restitution is not possible in such a case.)

Nearly, if not every, society throughout history would say “no” to that.  George should be punished simply for committing the crime, whether he can make restitution or whether he can or will learn a “lesson” from it or not.  The crime itself calls for penalty.

Now part of that is that the lesson can be taken by other people.  George’s punishment may discourage Frank from going down the same road. “Pour encourager les autres.”

The concept can be fine (and, indeed, its very universality or near universality suggests that alternatives simply do not work well enough to have made much impact on history) but, like anything it can be overdone.  Extreme punishments for the most minor infractions at least in Western society are considered barbaric.  This is the reason for the Eighth Amendment to the US Constitution–a quick look at actual punishments considered acceptable at the time should make it clear that it did not bar severe punishments.  It bared disproportionately severe punishments:  death by slow torture for the 8 year old orphan who stole a loaf of bread.

So, restitution, instruction, and even retribution are all valid components of the concept of punishment.  Which take precedence will depend on the details and circumstances of the behavior being punished.

And this is the main problem I have with most concepts of “divine punishment.” Restitution is not usually a factor.  There’s nothing being “paid back”, returned to someone else.  Instruction?  “Divine punishment” is usually applied after any opportunities for learning better and changing behavior going forward (particularly in cases where the punishment is forever where there is no “afterward” in which to behave better).  So we’re left with retribution.  And that’s where “disproportionate” comes in.  Humans are finite creatures, with finite lifespans and finite ability to do harm to others.  We as a society have decided that for most “bad things” people do there is a point where the punishment is enough.  Sometimes that “enough” is ending the malefactor’s life, but still, at some point the punishment for the given crime is enough and going beyond that stops being justice and becomes sadism.

And that, right there, is the problem.  In most concepts of “divine punishment” it never stops.  Ever.  Let’s go back to George.  Suppose we could inflict on George all the pain and suffering that Ed experienced, plus that of everyone who knew Ed and now are deprived of that, plus generations down deprived of the memory of Ed or the benefits of things Ed would have done, or descendants that Ed will never have now (being dead) might do.  Eventually, There will be a sum total of all that.  It may have to wait for the sun going off the main sequence and rendering Earth uninhabitable or even the heat death of the Universe (if we manage to get off this rock in a big way) to get a final tally but there will be some amount that aggregates the total harm George has done.  Would inflicting that amount of pain and suffering on George (or his shade) be sufficient?  If not, how about a hundred times that?  A thousand times?  A million times?  A trillion? Whatever value you come up with, sooner or later it must be “enough” and, sooner or later when “forever” is the scale, you’ll reach that amount.

And if “forever” is the time frame than “sooner or later it’s enough” is the same whether we’re talking about one “Ed” killed or a hundred million Chinese dissidents “persecuted to death.” At some point any retribution must be enough or it stops being justice and turns into torture for its own sake.

And so, if there is some form of deity out there, and if that deity is in any way just (let alone “loving” and “merciful”) than any place of divine punishment must eventually be empty.