The Second Condition for “Legitimate” Punishment

                 2. Lack of intent to change behaviour:

                 Retribution and punishment, while distinct in text and speech are linked in the real world in such a way that separating them is impossible. They go hand in hand. When a wrong is committed, we impose some nastiness upon the person who did it, both as punishment, so as to change his behaviour, but also as retribution, which has two functions. Paraphrased from the Stanford Encyclopaedia of Philosophy:

                 The nobler one being that retribution, some pain upon the criminal, ensures that the innocent victims of crime are not suffering more than the perpetrators. This, whether it deincentivizes further crime or not, at least provides some balance of pain in the world. The other function is pragmatic, and appeases our less noble selves, the desire for revenge. Perhaps those are not really different things after all, but in any modern state, or an organization like a school, it is revenge by proxy, which is preferable to street justice.

 

Bedau, Hugo Adam and Kelly, Erin, “Punishment”, The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2010/entries/punishment/&gt;.

                 

                When we act upon a transgressor, we nearly always are doing both things, punishing and exacting some retribution. Conflating them is constant, nearly universal, and it becomes something we never have to think about. We put some pain on someone who is misbehaving, and both functions are served. But what about the times when punishment fails to be served, when authority or intent can’t be supported? I think, at the psychic level, that if the authority is lacking only in the mind of the punished, and he happens to be an adult, the retribution that remains is not all bad. It only results in a second best solution in a criminal justice related situation where really, things are rarely ideal. It is true, probably in the majority of cases of adults being subjected to justice and punishment, that the person was probably fully aware of the law and the penalties and only retribution and incapacitation are indicated. Still, anyone speaking about those situations in terms of punishment, public officials or lawyers, may be viewed as being somewhat less than completely honest, and possibly counting on the easy conflation of the several ideas. As to intent, however, if we consider that adults already know all about their crimes and their penalties, the intent to change behaviours becomes suspect at best. In the case of repeat offenders, regular, guilty customers of the criminal justice system, without an effort toward rehabilitation any pretence of behaviour modification should be abandoned altogether, due to the documented failure of previous ‘punishments’ to change it.

                 In child-rearing situations, though, retribution is harder to justify, and rightly so.

                It is one of the main points of this project that even ‘proper’ punishment of children is bad enough for them and for society, which I plan to show, let alone putting any sort of hurt on children without so much as an attempt at changing the unwanted behaviour. Retribution, practiced upon children, is counter-intuitive to the acceptable goals of society; clearly, in that stage of life and development, education must be the priority for any action adults take with the young. With no more productive lesson, pain for pain’s sake is not something we should be teaching. However, many children can also fall into the role of ‘repeat offender’, seeming to require endless punishment. In that case, as with adult criminals, the excuse of the intent to change behaviour cannot be supported. At some point, we have to admit it’s not working, and just not admitting it doesn’t count; our denial won’t transform retribution upon children into productive punishment. In this sense, retribution upon children may well be in itself a definition for abuse.

                Psychic harm is an individual thing, an internal matter, so to speak. Subjective. When we exert a stimulus upon someone, it is not up to us what response will be generated in that person, we cannot determine psychic responses based upon our intentions. If the stimulus of legitimate punishment and abuse are identical, undifferentiated by our intentions, we can expect the same suite of responses: fear, confusion, trauma, in a word, damage.

                 But, what if our child is not having either of these doubts, what if he is a believer?

                 What if the child sees the imposition of unpleasantness upon him as authorized and proper, suppose the child knows he is guilty as charged, he knows the punisher is the correct and appropriate person to administer his punishment, and he knows the punishment itself is appropriate and just . . . then what results?

                Education, moral direction, respect?

                 Of course, this is rather tongue-in-cheek, we see the disconnect here, the logical problem with this example. It is very difficult to imagine why a child who agrees about his crime, and agrees about his punishment, and acknowledges the authority of the person administering his punishment would ever require that punishment in the first place. All the information to be gleaned from the situation he already has, there is nothing he needs to be taught. If, knowing it all, he still finds a compelling reason to commit his crime, we can assume he has done some risk analysis, weighed the costs and benefits, and proceeded. It’s reasonable to assume he thought the odds of getting caught were small, or the benefit of his misdeed was big enough to outweigh the chance of getting caught, whatever the odds, or possibly that some other harm would come to him that is even more unpleasant than the penalty if he didn’t do the crime, a worse consequence from some other agency. The point is, this scenario is a false one. In real life, the punished are not conscious and willing in their punishment. In the mind of the punished, it is seldom fair and reasonable; the punishments we receive rarely seem just to us. The idea that a punished child, a punished person, understands and agrees about his crime, his punishment, and the authority of the punisher, is a fallacy. To the punished, it is all abuse, to some degree or other. If we understood and agreed with our penalties, we wouldn’t need them.

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