Unit 4

7.1: Defining the Roles of Reward and Punishment

1. 7.1 Define the roles of reward and punishment in conferring justice

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Retributive Justice

Probably the oldest form of justice, retributive justice is best expressed in the biblical saying, “an eye for an eye and a tooth for a tooth” (Exodus 21:24–25). This kind of justice means that people should get what they deserve, either by way of reward or punishment, regardless of the consequences.

Distributive Justice

Distributive justice concerns itself essentially with the equitable distribution of good and bad to human beings on a just and fair basis.

Reward

Reward  is something given or received for worthy behavior, usually on the basis of merit, deserts (what people deserve), or ability.1

Punishment

Punishment  is the act of penalizing someone for a crime, fault, or misbehavior; a penalty for wrongdoing.2

Retribution (Deserts Theory)

Retribution is the act of giving people what they deserve, regardless of the consequences—in punishment sometimes referred to as the “eye for an eye, tooth for a tooth” or “revenge” or “just deserts” theory.

Utilitarianism (Results Theory)

Utilitarianism  advocates rewarding or punishing based upon the results of the act and whether or not it brings about the greatest good consequences for the greatest number of people.

Restitution (Compensation Theory)

Restitution is the act of somehow compensating a victim for harm or wrong done to him or her; such compensation usually is required to be made to the victim by the perpetrator of the harm or wrong.

7.2: Reward

1. 7.2 Examine nine ways of distributing the good or rewards

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Reward is one method of distributing on a fair and just basis the good that we are concerned with. There are basically four ways in which the good or rewards can be distributed:

1. As equally among people as possible without regard to their abilities or merits.

2. According to people’s abilities.

3. According to what they merit, or deserve.

4. According to their needs.

We will examine these as well as other criteria.

7.2.1: Criteria for Rewarding People

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Wouldn’t it be most just and fair to distribute good things and rewards equally among people, regardless of their merits, abilities, needs, or what they produce? An example that shows the significance of distributing good and bad equally among people concerns the scarcity of certain medical resources.

For example, in 1962 there were not enough kidney machines to dialyze (see Glossary for definition of  dialysis ) the kidneys of people who were in various stages of kidney failure. When there is not enough to go around of something as important as this, an ethical question arises: How to make a decision that will be just or fair to everyone concerned? Swedish Hospital in Seattle, Washington, was the first hospital to deal with this problem in connection with kidney patients, and it attempted to solve the problem by establishing two committees: a medical panel, to select those people capable of being medically assisted by dialysis, and a panel of mostly nonmedical people who would then decide who, out of those medically qualified for dialysis, would actually get the treatment. In 1963, the second panel was composed of a lawyer, a clergyman, a housewife, a banker, a labor leader, and two physicians. The medical panel had narrowed the 30 patients needing dialysis to 17, and the nonmedical panel was asked to consider the following factors: age; sex; marital status and number of dependents; income; net worth; emotional stability (especially in the sense of being able to accept treatment); education; occupation; past performance and future potential; and references.

The committee soon realized that making fair decisions was a nearly impossible task. They struggled to determine which factors they should consider seriously and in what order of importance:

· Whether the person was educated or uneducated?

· Whether the person was a professional, a laborer, or an office worker?

· Whether the person was religious or not?

· Whether the person was male or female?

· Whether the person had good, mediocre, or only poor references as to his or her character, potential, or past performance?

Such difficulties proved to be insurmountable, and the decisions were terribly agonizing for this panel of extremely well-meaning people. A much more complete description of the committee and its problems may be found in Paul Ramsey’s (1913–1988) The Patient as Person,3 but what follows will illustrate a few of the difficulties.

What happens when we get two men with the same job, the same number of children, the same income, and so forth? Between a man with three children and a man with an older wife and six children we must, for the sake of the children, reckon the surviving widow’s opportunity to remarry. In estimating “worth to society,” how much chance would an artist or a composer have before this committee in comparison with the needs of a woman with six children? Finally, if a patient is given a place in a kidney dialysis program because he “passed” a comparative evaluation of his worthiness in terms of broad social standards of eligibility, the needs of his dependents, or his potentiality for contribution to humanity, one can ask whether he should be removed from the program when his esteemed character changes. . . .4

Again, the question is how one is to distribute this “good” (dialysis) to people on a just and fair basis. We can, in this instance at least, rule out need because the patients all “need” the dialysis. If we go by abilities, how are we to distinguish justly between a housewife and mother, a lawyer, a doctor, an executive, a member of the clergy, a teacher, and a laborer, all of whom may be very able in their particular jobs? If we go by what people deserve or merit, then how are we to distinguish among these people, who all may be deserving of the treatment in the sense that they are productive human beings in their own fields and within their own families and communities? If we are going to rank people by merit, then what are the criteria to be, and how can they be just? For example, will we place a very clever and intelligent lawyer at the top and a rather simple but hardworking laborer at the bottom? These distinctions, of course, can be worked out on a quite arbitrary basis, as indeed they have been in various totalitarian societies, but then we must question whether being arbitrary is just and fair.

The most ideal solution is to gain enough resources so that everyone who needs them can have them, but this probably will never happen in all areas of need because there are so many needs and a definite limitation on available resources. Therefore, how are we to choose justly? Evidently, the “let the better person live” notion that we have just been discussing will not work too well, or at least will fall far short of distributing the resources fairly. We can also consider the alternative “all should die,” as Ramsey does, but who would deem it fair to let all 17 people die when we are certain that 10 of them can live—who wants to “throw out the baby with the bathwater”?5 The other alternative is the “drawing of straws” approach.6 After having witnessed the agonies undergone by the Swedish Hospital committee, many other committees or dialysis units throughout the country used a lottery method once the medical decisions had been made.

This alternative—that the lives of people must be decided by a lottery—may not be palatable to many people, but how else can you be just and fair toward all 17 people? Would you, as a kidney patient, rather be denied dialysis because you are not thought to be as worthy, able, or deserving as someone else, or because you did not win a fairly conducted lottery? At least, we would have to admit that everyone was treated fairly and justly by the latter means. It seems, then, at least in this situation, that this egalitarian way of determining justice is the most ethical, just, and fair.

Journal: Distribution of Good or Bad to Others

When you have had an occasion to distribute good or bad to others, what were these situations and what made you opt for a particular way of dealing with them?

Submit

Problems with Equality of Distribution

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And yet, there are problems with the egalitarian method of distribution. By definition, it ignores other criteria deemed important by their advocates and by people in general, such as merit, ability, need, productiveness, and effort, in its attempt to be fair and egalitarian in its approach to rewarding. Second, in what ways and to what extent are people equal? Is a doctor with long years of training equal to a janitor who learned the trade in a few weeks or months on the job? Should a beginning pianist and a fully trained concert pianist both be given equal chances to perform at Carnegie Hall? Should students be allowed to depose a fully trained, credentialed teacher and conduct class in the teacher’s place? As you can see, it doesn’t take many examples to point out the inequalities among people, jobs, and professions. So in what sense should they all be rewarded the same?

Perhaps they should all be given equality of consideration if they have other attributes or fulfill other qualifications that are necessary to certain jobs or professions, for example. People certainly should not be denied opportunities because of race, gender, religion, age, or handicap, but what if a job requires a great deal of physical strength and stamina? Unless women, senior citizens, or handicapped people can muster these attributes, should they be given equal opportunity for such a job along with those who can?

Finally, can we really ignore all of the other criteria used to determine reward, such as what people produce; effort extended; ability; need; long and expensive training; expensive equipment; physical danger; and unpleasantness of job? Shouldn’t these at least be considered, and when they are, isn’t equality as a basis of reward weakened? It would at least seem that we must examine these other criteria before settling upon an egalitarian approach to reward.

Production or What People Produce

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One criterion for rewarding is based upon what people produce, achieve, or accomplish through their own efforts, regardless of the amount of effort or the time taken. For instance, if a student has done exceptional work in a class, by this criterion she is entitled to a grade of A even if she had to put out very little effort or time because, for example, she has an excellent mathematical imagination and above-average ability. That another member of the class raised himself from failing work to a C by the end of the semester, by expending a great deal of time and effort, doesn’t mean he gets an A, too. He still has produced only C work through his efforts.

This production can be based upon quantity or quality, or both. For example, fruit or vegetable pickers are paid mostly on a piecework basis; that is, the more potatoes or peaches they pick in a day, the more they get paid. Others are paid basically for the quality of their work: for having creative ideas that improve the quality of a company’s product, efficiency, or image. Probably most employers will reward on a basis both of quality and quantity. The worker who can produce a high-quality product in large quantity is more highly paid than one who produces quality goods in small quantity, or one who produces a lot of goods of only mediocre or sometimes even poor quality. Therefore, based upon this criterion, people are rewarded solely on what they deserve, or merit, in view of what and/or how much they have produced; little account is taken of effort, ability, or need in determining whom to reward. The problems inherent in this method will be discussed as we proceed.

Effort

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Another standard for rewarding, which was hinted at in the previous section, is effort. This criterion would reward effort regardless of the quantity or quality of what is produced, achieved, or accomplished. In a classroom situation, those who put out the greatest effort according to their abilities would be rewarded the most. In a work situation, each employee would be required to put in eight hours of his greatest effort, and each would be paid the same wage.

There are certainly problems with this notion in that, for one thing, those who have contracted to do a job (e.g., building contractors) and who are being paid so much for the job are being paid not for how much time and effort they put in but solely for what they produce: a finished job. And how can effort be measured? Some people will work harder if given some incentive to do so, and others will make only an average effort no matter what they are offered. Third, suppose a fairly dull-witted person and a very bright person both work for eight hours at top capacity. Should they both receive the same consideration for wages and promotions? Which one would you want as a foreman or executive, for example: the one who is brighter or the one who is duller, given that they both make a full effort every day? The difficulty in determining effort, and the problem that effort alone does not necessarily make a person deserving of reward, causes this criterion to be a weak one, at least when taken by itself.

Ability

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Some people think that reward should be made on a basis of ability. But first, we must distinguish between natural and acquired abilities. Some people, such as the A student I described earlier, have superior natural abilities in certain areas. However, is merely having natural abilities ever enough? Should people be rewarded simply because they have certain abilities through no responsibility of their own? What if people choose not to put their abilities to use, owing to laziness or procrastination? If they are indeed more able than others but choose not to employ their abilities, should they be rewarded over people who do not have such abilities but who work hard and produce more and better?

Acquired abilities are different in that people have had to put out time, effort, and money to get them. For example, certain professionals, such as doctors and lawyers, must expend a great deal of time and money in order to acquire the abilities of their profession. Such abilities, once acquired, would be more significant than natural ones as far as rewarding is concerned. Of course, not using these skills remains as much of a problem as it does with natural abilities. It would seem, then, that abilities alone, whether natural or acquired, would not constitute a good criterion for reward—some combination with effort and production would have to be included in order to measure the use of and achievement attained by such abilities.

Need

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Some argue that good things and rewards should be handed out on the basis of need; that is, people who have the greatest needs should be given the most good things or should be “rewarded” for their need. Let us first distinguish between two types of need: private and public.

Private need is concerned with what individuals need as a result of being poor or out of work. Many people argue that we should help the poor and needy among us and that we should give them some of or the same goods as the rest of us possess. From a humane point of view, of course, helping the needy would seem to be an honorable ideal. However, to what extent do they deserve to be rewarded on the basis of need alone? For example, should we hire only the needy, regardless of qualifications or abilities? As John Hospers points out, people who need jobs most are often those who have no employable skills, and should employers load their businesses with unskilled workers and pay them the same as they would skilled workers?7 What would happen to their businesses if they did, and what incentives would skilled workers have to continue to work for such employers?

The questions pertaining to need often arise in academic situations when financial aid or scholarships are to be awarded. Should they be awarded to the most needy, the brightest, or both? It would seem that the ideal situation would be one in which those who have the highest academic potential and the highest need should be the ones to get these rewards, but often the most needy are not as academically successful as the less needy. And what about the consistently high-scoring student whose need isn’t as great as the needier student’s, or who has little or no need? Many such students feel that recognition for their outstanding academic achievement is being overshadowed by the needs of those who are average or only slightly-above-average students. One of the biggest problems with rewarding on the basis of need, both in the academic and in the business world, is that it eliminates the incentive to make an effort or develop abilities. If students or others are going to be rewarded on a basis of need alone, then why try to do anything other than be needy? Second, this criterion obviously is not just or fair to talented and hardworking people. Helping the needy, then, is an admirable goal, but to reward them, in the fullest sense of the word, on the basis of need alone, would seem to be neither just nor fair to those who fall into other categories.

Public need is somewhat different than private need in that here rewarding is done on the basis of people’s contribution to or fulfilling of public needs. For example, doctors often are rewarded because they fulfill a need that everyone has for health care. On the other hand, nurses, who fulfill the same need in different but extremely important ways, are not rewarded the same as doctors. In fact, some nurses feel they are penalized rather than rewarded for what they are doing. This points out the difficulty of determining which needs are the most important, and how the suppliers of those needs should be rewarded. How will we rate farmers, plumbers, jewelers, teachers, police, and entertainers as to their relative importance in supplying public needs? Sometimes people who supply less important needs get much greater rewards for their efforts than those who supply more important ones. Some entertainers and athletes, for example, are much more munificently rewarded than police officers, firefighters, or nurses, all of whom risk their lives or try to protect human life every day. How we should reward public need, then, is a difficult problem to resolve.

Other Criteria

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Five other criteria should be mentioned before we enter into our discussion of the two major theories dealing with reward.

The following Table 7.1 lists the other criteria for rewarding people.

Table 7.1: Other critieria for Rewarding People

Criteria	Description
Long and expensive training in a profession	For example, it often takes three or four years beyond the bachelor’s degree to become a lawyer, and more beyond it to become a doctor—shouldn’t this be rewarded in some way? On the other hand, teachers who get degrees beyond the B.A., which may take them two to five years, depending upon the degree, often aren’t paid as much as entry-level skilled laborers, who may never have had to finish high school, much less go on to college. In other words, rewarding on this basis seems to be uneven, to say the least. Also, should incompetent doctors or lawyers be rewarded for the length and cost of their training without regard to ability or effort?
Job or profession requiring expensive equipment	Some feel that those who are required to purchase and maintain expensive equipment should also be rewarded. Doctors and dentists, who require very expensive equipment, would be rewarded more than others, according to this criterion. Perhaps this is fair or just, but how much more should they be rewarded than practitioners in professions that don’t require expensive equipment but do require a lot of education and training or skills or hazardous duty? And to what extent should their rewards continue after the equipment is essentially paid off, for as long as they practice their professions?
Physical danger	Should members of bomb squads and other hazardous duties be paid extra or given higher wages because of the nature of their duties? Extra pay is often allotted to such professions in the military with its combat, flight, and special duty pay, but very often it is not at all commensurate with the dangers or hazards faced. Again, police officers, firefighters, and nurses are seldom given any extra pay, and often their regular pay does not really compensate or reward them for all the risks to their and others’ lives.
Unpleasantness of job	Another of the “other” criteria is that of rewarding people for the unpleasantness of their jobs; for example, paying garbage collectors high wages because what they do is necessary, fulfills a public need, and because few people want to do such jobs. The main difficulties here are, how are we to decide which jobs get the greater reward because of their unpleasantness and how much reward are the people doing them to be given?
Seniority	Many institutions and businesses reward on the basis of seniority. The argument here is that those who have shown loyalty and perseverance through long years of service to a specific organization should be rewarded. Often when people are in jobs for too long a time, however, they may become ineffective or even burned out. If such people are no longer effective workers, should they continue to be promoted and rewarded over those who may be junior to them in seniority but who are more skillful as workers? Only if qualifications and abilities are equal can seniority be a fair way of rewarding people for their efforts.

7.3.1: Retributivist or Deserts Theory

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The first theory concerns itself strictly with what people deserve, or merit, for what they have done in the past. These theorists feel that people ought to be rewarded for what they have done, not for what the consequences of what they have done may be or what kind of future good consequences may be derived from rewarding them. Retributivists generally focus on rewarding people for their efforts. They are not concerned with the utility of rewarding people—such as incentives to do more and better work, or what is in the public good—but rather with what effort people have expended, rather than what they have done as a result of that effort. Therefore, two people who put out their best efforts on the job for eight hours a day would, according to this theory, be rewarded in the same way or paid the same wage because they deserve it regardless of any future consequences.

Obviously, one such future consequence might be that a brighter and more productive worker would seek employment elsewhere, where he or she could be rewarded for abilities as well as effort, and then the company might lose its better workers and put out a product of less quality and in less quantity. Also, people would not seek dangerous or unpleasant work because there would be little or no incentive for them to do so. Such an approach might affect not only a particular business alone but also, if applied on a widespread basis, an entire economy. The retributivist would argue that at least all people would be getting what they deserve and that they should be rewarded on that basis alone. The utilitarian would argue that although this might be just, still the utility, or “usefulness,” of rewarding in this manner would not be in the best interests of everyone.

Journal: Methods of Reward and Punishment

What method of reward and punishment is used in your family, and how does it fit with the three theories? Does it work? Be specific.

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7.3.2: Utilitarian or Results Theory

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Utilitarians base their ethical theories upon good consequences for everyone affected by acts or rules. Unlike the retributivists, they emphasize the future results of rewarding rather than merely respond to past efforts. The utilitarian would argue that rewards should be given only upon a basis seeking to bring about good consequences for everyone, so that if rewarding a worker in a certain way will give him or her an incentive to do better and work harder or encourage more people to do the same, then the proper reward to accomplish all of this should be given.

The utilitarian definitely would be in favor of paying higher wages or giving extra pay for dangerous or unpleasant jobs because the good consequences that would derive from doing so would be to attract people to these jobs who might not otherwise have been willing to do them. Utilitarians would also believe in rewarding workers who are brighter or who produce more and better results regardless of the effort they put in because in the long run doing so will bring about the best consequences not only for these particular workers but also for the company and the economy in general.

One of the problems with the utilitarian theory is that instead of rewarding hard work and conscientiousness, it essentially rewards production. For example, if a flamboyant, playboy type of employee who makes little or no effort can bring in more business than a hardworking, conscientious, but somewhat dull employee, then the former would be rewarded more than the latter even though the latter might be more deserving. This would be discouraging to the hard worker, who might quit. The retributivist would argue, of course, that the hard worker is not getting what he deserves, whereas the playboy is getting more than he deserves because he has put in much less effort than the hardworking employee.

Another problem with the utilitarian approach is that if good consequences alone are the criterion for reward, then it is possible to reward a totally undeserving person. For example, suppose a boss knows that one of his workers, Tom, is totally incompetent but is extremely well liked by his fellow workers. Thinking of good consequences—the morale and happiness of the workers—and not of what Tom deserves, he might give Tom a promotion and a raise. This is possible under a strictly utilitarian results–theory approach to reward. As you can see, the difficulty of whom and how to reward is a real problem.

Journal: Theories Followed for Reward and Punishment

How do we, in America, generally reward, punish, or distribute good or bad, and which theories do you think we basically follow? Give specific examples and illustrations to support your main points.

7.4: Punishment

1. 7.4 Report the four requirements that punishment should meet

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Anyone can decide to punish anyone else. For example, when children misbehave, their parents have the authority to punish them—short of child abuse and battering—by “grounding” them, spanking them, speaking harshly to them, depriving them of fun or social activities, or sending them to their rooms. A husband who cheats on his wife can be punished by her by being thrown out of the house and not being allowed to see his children easily. There are many ways in which people can be punished by others for real or imagined offenses. However, in our discussion of punishment in this module, we will be talking about that which is meted out for a violation of a duly constituted moral rule or criminal or civil law.

7.4.1: Requirements of Punishment

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There are four requirements that punishment should meet:

1. It must involve unpleasantness of some sort. It would hardly be punishment if it did not, and this is one of its dangers, in that usually it imposes harm or injury upon someone. Therefore, it requires special justification and should be administered only if and when a person has seriously violated the rights of others by injuring or harming them.

2. Punishment must be given or done for something. It should not be imposed for no reason at all (what sense would that make?) or because the person doing it out gets pleasure from doing it, for example. This would be unfair to the recipient.

3. It should be imposed by some person or group that has been given “duly constituted” moral or legal authority to punish and should not merely be left up to the whim or caprice of individuals.

4. It must be imposed according to certain rules or laws that have been violated by the offender. This is why it is important for each ethical system to have some theory or rules concerning the punishment of violators of that system.8

Given these requirements, it would seem that the best context in which punishment should be administered is the legal system because, first of all, individuals often are concerned with vengeance, not justice, whereas the state is concerned (at its best) with the opposite. The state can provide a more objective arena in which to administer punishment than when the atmosphere is filled with the anger and hurt of the aggrieved victim or victims. In other words, by the authority of the state and its laws, violators should be punished for disobeying the laws within an institutional rather than a vengeful context.

There are several reasons why punishment on a basis of law is more ethical and just than that carried out through individual vengeance.

1. First of all, when punishment is done according to law, the matter is ended; that is, once the appropriate punishment has been meted out by duly constituted authority, no more punishment is given for the violation. This is not so with the concept of vengeance—it can go on and on, sometimes decimating whole families, tribes, and societies. For example, in long-standing feuds, if a person of family A is killed, then vengeance requires that a person from family B should be killed to “even the score” or “exact justice,” and then, of course, another person from family A must be killed to bring justice to family B, and so on. Punishment often is never-ending when individual vengeance is its context.

2. Second, as mentioned previously, law can be more unbiased than individuals can. Lawyers, judges, and juries usually are not personally involved with either the offender or the victim, and they also have to operate within a set of strict rules, procedures, and laws rather than on a basis of whim or caprice. The entire situation and the people involved in the crime—including extenuating circumstances and other special issues—can be presented and adjudged as fairly as possible. Hurt and angry victims are often incapable of being unbiased and objective—no one really expects them to be.

Therefore, despite the failures of our legal system, it is still the more just way to deal with violations of our ethical and legal rules and laws and with the punishment of such violations.

7.5: Retributive Theory of Punishment

1. 7.5 Examine the retributive or the deserts theory of punishment

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The first and probably the oldest theory of punishment is the retributive, or deserts (based upon what people actually deserve), theory, which states that punishment should be given only when it is deserved and only to the extent that it is deserved. In this sense, the retributivist theory is concerned with the past, not the future. Punishment is imposed not in order to do or accomplish anything, such as deter offensive behavior in society. This, as we shall see, is the utilitarian point of view. Rather it should be imposed solely because of an offense or crime a person has committed; that is, the punishment must actually be deserved and not be administered solely in order to bring about good consequences. F. H. Bradley (1846–1924) stated this point of view succinctly:

Punishment is punishment, only when it is deserved. We pay the penalty because we owe it, and for no other reason; and if punishment is inflicted for any other reason whatever than because it is merited by wrong, it is a gross immorality, a crying injustice, an abominable crime, and not what it pretends to be.9

7.5.1: Why Crime Requires Punishment

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Crime requires punishment for two reasons, according to retributivists. First, punishment is required in order to reestablish the balance of morality, which is disturbed when someone violates laws or moral rules. Such laws and rules are established in order to achieve a balance in a given society between individual rights and the common good, and when a crime is committed, the balance is upset and must be restored. According to the retributivist, punishment is the only way to correct this imbalance.

Second, the benefits that a society brings to its members carry with them the burden of self-restraint, and anyone who alleviates himself of this burden acquires an unfair advantage. According to the retributivist, this advantage must be eliminated and the burden of self-restraint restored. For example, in our society two of the benefits that we are all supposed to enjoy are freedom from bodily harm or injury and a noninvasion of privacy. Both require the burden of self-restraint on the part of all of us to see that such benefits are maintained. If a man rapes a woman, however, these benefits are denied her because the man failed to restrain himself; therefore, the unfair advantage he gained of having power over another and gaining benefits to which he was not entitled needs to be righted in some way. The guilty party must be punished, according to the retributivist, in order to eliminate the unfair advantage he gained by raping the woman.

Journal: Purpose of Punishment

To what extent is the purpose of punishment to (a) protect society, (b) punish criminals, or (c) rehabilitate and reform criminals? Why do you think so? Be specific.

7.5.2: Problems with Determining What People Deserve

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In many ways, punishing on the basis of what people deserve seems to be the most just approach: People violate a moral rule or societal law, and they are given punishment for it only because they deserve it for what they did. However, there are several problems with this theory. First of all, how are we to decide what it is that people actually deserve? What if a crime cries out for life imprisonment or execution, but the person who committed it is old and sick?

For example, in a Florida case, a man was convicted of murder for shooting his wife because she had Alzheimer’s disease and osteoporosis (softening of the bones). He stated that he felt she wanted to die but was unable to kill herself because of her illness. He was 75 years old, and in Florida, a person guilty of murder must serve a minimum of 25 years before being considered for parole. Many people argued, first of all, that he shouldn’t have been tried for murder because what he did was an act of mercy, prompted by love for his wife. Second, they argued that the sentence was not what he deserved because he was old and not well himself and 25 years in prison would probably hasten his death. The sentence surely would mean that he would die in prison—after all, how many people live to be 100 years old? Many people, including his daughter, begged for mercy for him, asking that he be pardoned or paroled or that his sentence be commuted (i.e., reduced). Whatever one may think about the man’s guilt or reasons for doing what he did, critics of retributivism could ask, “Shouldn’t his age and state of health be considered?”

Another example points up the problem of punishing on the basis of deserts alone. What if a man committed a crime several years earlier but was never caught until now and since that time has lived an exemplary life, doing a lot of good for humanity? Should he now be made to pay for that crime? The answer, based strictly upon the deserts theory, would be yes. He committed the crime, and he still deserves to be punished for it, the deserts theory having no need to concern itself with any concept of mercy or forgiveness based upon what he has or has not done since the crime.

7.6.1: Consequences for the Offender

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The question of whether or not punishment will bring about good consequences for offenders is a difficult one. According to the utilitarian, the purpose behind punishment of offenders is to rehabilitate and reform them so that they are deterred from committing the same offense or any others in the future. Second, punishment should make them better persons and therefore better members of society. It is obvious that capital punishment, or the executing of offenders for a serious offense, will certainly deter them from committing future crimes, but it is also obvious that killing them will not rehabilitate or reform them in any way.

What about other types of punishment, short of execution, such as imprisonment for determinate or indeterminate periods of time or for life. Life imprisonment—if it really is life imprisonment, that is, without parole—would deter offenders from committing more crimes out in society (not necessarily within prison), but would it rehabilitate or reform them? And if it truly did foster reform, then would it be just or fair to keep such offenders in prison? What about lesser sentences? Would the punishment while in prison deter offenders from future wrongdoing, and would it rehabilitate and reform them so that they could return to society as moral members? The answer depends in part upon what is to be done with offenders while they are imprisoned. Most experts argue that our whole belief that imprisonment rehabilitates and reforms offenders is at best a bad joke. Very few are rehabilitated by being sent to prison, where they will be associating with habitual criminals who usually are guilty of worse crimes than first offenders ever thought of committing. How can such associations and such an atmosphere rehabilitate or reform?

Utilitarians and others dissatisfied with the prison system have often argued for incarceration not as a punishment, but for purposes of psychiatric treatment, hoping that the proper psychiatric and psychological techniques and therapies may rehabilitate and reform offenders when imprisonment alone cannot. However, such an approach of treatment rather than punishment is also often ineffectual for several reasons:

1. Prisoners often resent mandatory treatment—they “don’t want shrinks messing with their minds,” which they often feel are just fine and not in need of adjustment of any kind;

2. Therapists all have different approaches and different ways of measuring results, and there are no clear general standards of treatment by which to operate or cure;

3. Therapists may have too much power over offenders in that often the alternatives to psychiatric or psychological treatment are further penalties within the prison system, such as solitary confinement for those offenders who will not cooperate;

4. Therapists also have the power over release dates in that sentences for treatment may be indeterminate, whereas regular sentences usually are determinate.

In the play Nuts, by Tom Topor (1938–), Claudia, a woman who is fighting a “legally insane” designation so that she can be tried for the crime of first-degree manslaughter, states this problem quite well when asked by her attorney what the sanity hearing means for her future:

If I lose today, I’m committed for a year. . . . Sixty days before the year is up, the hospital can ask to retain me. If I lose again, the hospital can keep me for two years. From then on, the hospital can apply to hold me every two years until two-thirds of the maximum sentence on the highest charge in the indictment. Two-thirds of twenty-five years is seventeen years. . . . But you guys aren’t done yet. If the commissioner of the hospital—this is the hospital I’ve been sitting in for seventeen years—if he decides I’m still mentally ill and need some more treatment, he can apply to get an order of certification. . . . If they do it right, they can lock me up in a hospital for the criminally insane, then they can lock me up in a run-of-the-mill loony bin. And they don’t ever have to let me have a trial. That’s what it means.12

Finally, psychology and psychiatry are such inexact sciences that few therapists can really be certain that one of their patients has been sufficiently cured so that he or she is quite certain not to commit another crime or endanger anyone in society. One of the most frustrating and discouraging things about societal punishment is that studies have revealed that no matter whether offenders have simply been locked up, locked up with punishment, or locked up with treatment, their recidivism rates (return to crime and prison) are the same. No way of punishing offenders seems to work better than any other. This problem certainly weakens the utilitarian’s position of at least trying to find a method of punishment that will actually bring about good consequences for the offender and for society’s protection as well.

7.6.2: Consequences for Potential Offenders—Deterrence

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Another way that utilitarians have of measuring the future good consequences of punishment is seeing whether or not it deters people from committing crimes or being immoral; that is, to what extent does punishing a criminal, or at least having punishment available, deter former criminals or noncriminals from committing offenses? From the utilitarian standpoint, if punishment could do this, it certainly would be worthwhile. The assumption behind this type of deterrence is that if people see or hear of offenders being punished for crimes they have committed, then they themselves will be deterred from committing crimes. In this sense, punishment operates as that external sanction of which Jeremy Bentham wrote.

There are several problems with the deterrence theory, however. First of all, there is no conclusive proof or evidence that the punishment of one person deters anyone else from committing crimes. For one thing, not all people know of punishment when it is meted out; but even if they did, there is still no evidence that the knowledge deters. In early England, thieves used to be hanged publicly, and pickpockets worked their way through the crowds while the hangings were taking place! Also, none of our capital punishment executions are seen by the public; they only hear or read about it on radio, on television, or in the newspapers. So how or why should they be deterred?

Moreover, to punish for purposes of deterrence is to use a person as a means to an end, which is unjust according to many. For example, Kant’s Practical Imperative stated that no person should be used merely as a means to an end but should be considered as a unique end in himself or herself. This is one of the retributivist’s strongest criticisms of the utilitarian theory: That people may be punished, not because they deserve it, but rather because they should be “made an example of” or because their punishment will deter others. The retributivist argues that offenders should be punished if and only if they deserve it, not for some other future-good-consequences reason.

This problem only gets worse when we realize that if deterrence works or is thought to work, then it could be accomplished just as well by punishing the wrong or innocent person. Many tyrants in history have used this technique to instill fear in their subjects, with the people who were punished not having to be guilty of anything. Suppose that a particular heinous crime has been committed—such as the rape, torture, and murder of a little girl—and that the public is highly outraged by this crime. Such a public’s cry for justice may well be satisfied by punishing the wrong person as well as the right one, as long as someone is caught and punished for the crime. If we thought it was unjust to use real criminals as means to the end of deterrence, then what of using the wrong or innocent person and the harm that would do to the person and his or her family?

We can see, then, that there are some serious problems with the deterrence argument for punishment. John Hospers states that a legal system that is strong and pervasive and relatively free from corruption—where “at all times the police, the courts, and the jails are in operation, and there is always a good chance that they will catch violators of the law”—probably deters most people from committing crimes, rather than seeing to it that a particular criminal or even criminals are punished.13

Journal: Effectiveness of Punishment in Judicial and Penal Systems

To what extent do you feel that America’s judicial and penal systems are effective in punishing or rehabilitating criminals?

Submit

7.6.3: Effect on Society at Large—Protection

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The last area from which good consequences may derive is the protection of society in general by means of the punishment of criminals. Almost everyone will agree that the major reason for punishing criminals, particularly for imprisoning or executing them, is to protect society in general from their actions, which may be dangerous, harmful, and even fatal to its members. There is no doubt that executing criminals or keeping them out of the mainstream of society by imprisonment certainly counts as good consequences, but even here we encounter problems. First of all, as has been mentioned, when should we let these offenders back into society, and what will they be like after having been subjected to the deeply criminal atmosphere of most of our prisons? Will they be worse or better members of society after they come out? Nobody can tell—neither psychiatrists, psychologists, sociologists, parole board members, wardens nor even the prisoners themselves.

For example, there were two cases in which ex-convicts should have been able to work their way back into society perfectly, and indeed they did so—for a while. One ex-convict was a good writer and even had a job waiting for him on the outside at a newspaper. He was allowed to leave prison to take college courses in journalism, and generally he did well during this period, writing articles (which were considered quite good) for the school and local newspapers. When he got out, he continued to do well for a while—and then was involved in a fight that resulted in a murder and was sent back to prison.

In the second case, a man who had served eight years for dealing and using drugs was released. He returned to college, learned a skilled trade, and even did well enough to open his own business and become bonded. When he had marital problems, however, he again resorted to drugs, lost his business, attempted to kill someone, and very nearly lost his life. This does not mean that some ex-convicts don’t make it on the outside and no longer threaten society in any way, but it does raise the question of how effective punishment really is in protecting society, at least over the long run.

Another criticism of this theory of punishment is that some crimes are crimes of passion, and the persons who commit them will probably never commit a crime again. For example, a husband who comes home, catches his wife with a lover, and in a fit of passion kills them both is not any more dangerous to society after the murder than someone who has not committed a crime, according to many psychologists. The retributivist would say that he should be punished because he deserves it, but from a utilitarian point of view, if his punishment would not protect society, in that he is no longer a danger, should he be punished? Many would point to the fact that he demonstrated an inability to stop himself from committing such a heinous crime, doesn’t that provide at least some evidence that society should be protected from him? Further, how can we know for certain that he won’t kill again if he is put into another similarly stressful and emotional situation?

7.6.4: Problem with Justice

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The last and major criticism leveled against the utilitarian theory of punishment is that it doesn’t concern itself with the justice of punishment, as retributivism attempts to, but rather only with its utility. Utilitarians are accused of being interested in social engineering rather than in justice. Some utilitarians admit to their interest in social engineering but argue that justice is really an old-fashioned concept and that social engineering for the common good is morally superior.

This problem associated with the search for justice—the danger of utilitarianism degenerating into a  cost–benefit analysis , or end-justifies-the-means, approach to morality again rears its ugly head when we are dealing with the matter of punishment.

We have seen that the utilitarian theory of punishment avoids some of the problems associated with the retributivist theory, but there are problems with the utilitarian theory that raise issues of the justness of punishment from the point of view of utility. Before we discuss any possible synthesis of the two theories and their associated problems, one other and newer theory must be presented.

7.7: Restitution Theory

1. 7.7 Examine the restitution or the compensation for victims theory of punishment

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The restitution, or compensation for victims, theory holds that justice is served only if victims are provided with restitution for the crimes committed against them. For example, if someone steals from a man, then what is stolen should be paid back in some way, either by returning his property in its original form or by furnishing him with some sort of compensation for what he has lost.

7.7.1: Crime Against the State, Not the Individual

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The crimes-against-the-state theory has come about because of a change in the views about whom a crime really wrongs. Prior to the American Revolution, crimes were considered to be violations committed against individuals, but in contemporary society, crimes are considered to be violations committed against the state; therefore, restitution has not been a major concern until recently. If someone murders another, the murderer has legally committed a crime against the state; therefore, the state, through its judicial system, will seek to bring the murderer to trial and to punish him or her for the crime if found guilty. Of course, the perpetrator has in actuality murdered a person, not the state, and the survivors of the victim have been made to suffer because of the crime.

Given this view, perhaps it is easier to understand why so many survivors demand the death penalty for killers. They feel that the crime was committed against them and the person they lost and that taking the criminal’s life is the only way to attain justice. The state, on the other hand, sees this as being a crime against the state that may or may not require the death penalty.

The restitution theory, then, has been established in order to counteract the emphasis on crimes being committed against the state, for this has tended to ignore compensation or restitution to the victims of the crime. Whatever other kind of punishment of the criminal is being considered, this theory requires that some sort of compensation or restitution to the victim or the victim’s family be included. For example, if a woman kills the husband and father of a family, part or all of her punishment may be to work most or all of her life to support that family because in this case she has eliminated its major source of financial support. She also can be ordered to pay medical and hospital bills where injury or harm has ensued and to provide some sort of compensation for injuries sustained as determined by a court of law.

It is important that restitution not be decided by the victims themselves because often they are too emotionally involved to be fair in their demand for compensation; therefore, it must be reached through the judicial process. In this way, criminals can either compensate victims with money or be put to work for the victims’ advantage, either at their home or place of business. If not, then criminals can be forced to work in some state-supervised job, all the earnings from which will go to their victims.

7.7.2: Restitution’s Relationship to the Retributivist and Utilitarian Theories

LISTEN TO THE CHAPTER AUDIO:

Restitution fits in well with the retributivist theory in that it takes into consideration not only the deserts of the criminal but also those of the victims. It provides a more meaningful punishment to satisfy these two types of deserts, and the retributivist can avoid criticisms of punishment for punishment’s sake.

Utilitarians, on the other hand, may be happier with this type of punishment because they will see it as more useful and bringing about more good consequences than, say, locking up criminals to do nothing for the rest of their lives or killing them. Utilitarians may feel that good, honest work for criminals will be rehabilitative, whereas some good consequences will also accrue to the victims of the crime in that they will be compensated to some degree for the crimes against them.

7.7.3: Problems with Restitution

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Although the idea of compensation and restitution for victims sounds good, there are several problems with this approach to punishment. To begin with, there is really no restitution possible for the crime of murder. How much money will compensate for the taking of a human life? Because each life is unique and basically irreplaceable, how can one put a price on it? Further, such heinous crimes as rape and child molestation are not much more easily compensated. How can you give people back their privacy once you’ve invaded it, or their dignity once you’ve taken it away? How can you ever make restitution to children for taking away their childhood and affecting them adversely forever?

If restitution is made in monetary form, which it mostly is, such punishment or restitution will be uneven; that is, the richer criminals will be able to afford it, whereas the poorer will not. How can punishment under such circumstances be just? Would you make the rich pay more and the poor pay less? If so, victims will not be compensated evenly, and rich criminals will still get off with less punishment than poor ones.

Further, if criminals are old or sick, how can they compensate by their labor or in any other way? We cannot expect a man who is seriously ill or dying, for example, to hold down a job or even to come up with money. And what if he becomes too old or sick to work after the restitution has been made for a while? Can we expect him to continue somehow? And won’t the victim be denied restitution if any of this happens?

Finally, the most serious problem is that restitution does not distinguish between intentional and unintentional injury or harm. What if, for example, an accident in which someone is seriously injured or killed occurs because a car’s brakes fail and the driver didn’t know they were faulty? Should she be required to make restitution to the same degree as one who intentionally robbed, raped, molested, and murdered his or her victim? There is still a victim, and the victim is still due restitution or compensation under this theory, but would this be fair to the unintentional perpetrator of the injury or harm?

As a matter of fact, this kind of case where harm occurs, but the people causing it are really without fault, presents problems for all three theories of punishment. For example, people who are unknown carriers of injurious or fatal diseases certainly can be the cause of injury, harm, or death, but to what degree should they be punished? Are there really any criminal deserts from the retributivist’s point of view? It would certainly seem not; therefore, why should carriers be punished? And yet quarantining or isolating is after all a form of punishment, isn’t it? The strict view of the retributivist that punishment should be deserved, then, presents a problem in such cases. As far as the utilitarian is concerned, perhaps quarantining or isolating the person is good for society in general, but it certainly would not bring about good consequences for the carrier—in other words, not for everyone concerned. And as mentioned earlier, why should such people have to make restitution to or compensate victims when they are not essentially at fault?

The AIDS (acquired immune deficiency syndrome) crisis is a good example of this problem. There has been so much bumbling and confusion in the handling of the crisis at so many levels and for such a long time that many people who had the virus, but not the overt disease, could infect others with the virus long before they knew they had it. Most of these carriers engaged in activities (sexual intercourse, drug use, and  intravenous  blood donation) that transmitted it to others. Some who were warned that what they were doing was dangerous did change their lifestyles, but some paid no attention to the warnings and continued to engage in activities that would infect others. Should all AIDS carriers be punished in some way, or only the latter group who disregarded warnings? Is it even fair to punish the latter group, given the fact that we didn’t know for sure that people were carriers unless they had full-blown AIDS or until a test had been developed to detect the AIDS virus in the bloodstream (not until 1985—the infection has been thought to have begun as early as 1976)?

There were a few carriers who seemed intentionally set on transmitting the disease, and scientists and doctors were quite upset with them for being so careless in their lifestyles, but the attempt to stop them forcefully was really impossible. The so called Patient Zero, Gaetan Dugas, described in Randy Shilts’s (1951–1994) fascinating book on the AIDS crisis, And the Band Played On, was one of these people.14 He was thought to have been the first person to bring AIDS into the United States, and because of his multiple sexual contacts he may have infected as many as 2,000 people! When told of this problem, he refused to accept any responsibility or change his lifestyle in any way. Should he have been punished in some way? How? No matter how angry we are with such people, imposing punishment under any of the three theories would be extremely difficult.

Journal: Caring for the Less Fortunate and Needy

To what extent do you feel that as a country and its citizens we should take care of our less fortunate and “needy” members, and why? How should this be done—through private donations, government support, or both? Explain.

7.8: Is a Synthesis Possible?

1. 7.8 Review the synthesis from the different theories of reward and punishment

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Because all three theories have their disadvantages and because difficulties exist if we try to apply them singly to the problems of reward and punishment, perhaps a compromise or a reasonable synthesis might work.

From Retributivism

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From the retributivist theory we certainly could consider what people deserve or merit before rewarding them, at the same time recognizing that we don’t have to settle on this criterion alone. In relation to punishment, we could use the idea that no one who is innocent should be convicted or punished no matter how many good consequences might come about from doing so (general deterrence, for example). We would have as a basic principle that in order for people to be punished, they must truly deserve punishment and that the punishment must “fit the crime” and not be excessive. We also could adopt from the retributivist the principle that in general more serious crimes require more severe punishment and vice versa.

From Utilitarianism

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After we have adopted these preceding basic principles, we then could modify or moderate the distribution of rewards and punishments, or suspend sentences, based on what would be useful, especially in cases where retributivism might seem to border on the unjust or unfair. In other words, we could insert the idea of utility into our deliberations on rewarding or punishing. We could say, for example, “This man deserves to be punished because he has committed a serious crime,” but then ask ourselves what useful purpose would be served in severely punishing a sick 80-year-old man? In this way we could temper what is at times deemed to be overly severe or unfair punishment with a consideration of usefulness—if a particular punishment would not bring about the best good consequences or at least do more good than not punishing or punishing less, then retribution could be tempered by the utilitarian approach to reward and punishment.

From Restitution

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Actually, the theory of restitution can fit nicely into the utilitarian theory of reward and punishment because it certainly can bring about good consequences for the victim of a crime while at the same time helping to move the criminal toward a more worthwhile and noncriminal life.

From the point of view of the retributivist, not only would criminals get what they deserve, but compensating victims might also be seen as a more just type of desert for the criminals than many of the useless types of punishment, such as putting them in solitary confinement or executing them. Further, the innocent and most deserving victims of crimes also would be rewarded to the best extent possible by being compensated at least in part for the harm done to them.

7.8.1: Other Possibilities for the Distribution of Good or Rewards

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In addition to synthesizing the preceding three theories, we could also try to synthesize the four major ways and other criteria for distributing good, or rewarding people (mentioned earlier in this module). We could begin on a basis of distributing as equitably as possible and with respect to need, and then we could temper these considerations where applicable with the notion of what people deserve, or merit, as a result of their abilities or other factors, such as their productivity, effort, and the stress, danger, or unpleasantness of their jobs. A synthetic approach, then, might be the best one to use. Whether the problems inherent in all three theories could be resolved enough to make such an approach work remains to be seen.

Another important variable in deciding how and to whom to distribute good and bad would have to be the situation or context in which the distribution is to take place. For example, in the kidney dialysis situation previously described, need was a given in that all patients with kidney failure need dialysis or they will die. Also, the committee had determined that all of them basically deserved to be dialyzed. The problem arose when the committee tried to determine the individual and comparative worth of their lives. In this case, then, a system that distributed good and bad equally, without regard to desert or merit or ability, seemed to be the most just approach to this problem, and so the lottery or chance method of distribution was used.

It is quite possible that a situation could arise in which an exception could be made to this egalitarian approach. Suppose, for example, that one of the patients needing dialysis was a world-renowned doctor, a nephrologist (a specialist in kidney diseases) working to expand the availability of dialysis machines and kidneys for transplantation. Might it not be advantageous to the other and future patients with kidney failure to allow him to be dialyzed, even if he didn’t win the lottery? Further, if the president of the United States were in need of dialysis, shouldn’t he be given preferential consideration considering that what happens to him affects everyone under his jurisdiction? Other issues have arisen since these decisions were made. Some nephrologists have required that patients who are to receive dialysis must stay on their required regimen (a very strict one for kidney patients) in order to receive dialysis, the idea being that if the patients are not going to do what is necessary to help themselves, then dialysis is essentially wasted on them and would be better utilized with patients who will cooperate with their own health care.

In some cases, we would not use the egalitarian method of distribution at all. For example, it is not required that in order to be fair, all of us should have the same security and protection as the president. Because of his ability, the dangers of his exposure, and the good of all people for whom he is responsible, he deserves and merits such protection, whereas the rest of us don’t, unless our situation is such to require it (e.g., our lives have been threatened by an escaped criminal at whose trial we were key witnesses).

7.9: Reward and Punishment in Relationship to Justice

1. 7.9 Define justice with respect to reward and punishment

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Nowhere does the issue of being just or fair arise more powerfully than in the matters of reward and punishment, and especially punishment. One element missing from the ethical theories thus far is a discussion of what to do with those who seriously violate one or more of the basic ethical tenets. Should the same principle of justice be applied to grievous wrongdoers as well as to those who follow an ethical system faithfully, or are the transgressors beneath this principle because of their unethical actions and behavior? This module will discuss reward and punishment as aspects of justice and present the various theories of distributing reward and punishment in order to see whether we can discover which would be the most just.

7.9.1: Elements of Justice

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Several elements of justice in general apply specifically to reward and punishment.

Just as ethics or morality involves the “treatment” of human beings by other human beings, justice as an aspect of ethics involves the same thing. When we talk about being just or fair, we are talking about being just or fair to other human beings, and reward and punishment have to do with the way in which one human being treats another. What we are discussing here, then, is the notion of  distributive justice , or how we can dispense good and bad or reward and punishment on a just and fair basis.

Concern with Past Events

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Justice basically is concerned with past rather than future events in that we reward or punish people for what they have done, not for what they will do. It is certainly unfair and even unrealistic to reward or punish people for what they might do even though incentives sometimes are given with an eye to future accomplishments and even though—as you will see when we discuss the utilitarian theory—to some extent the future can be considered when one is rewarding or punishing.

Individualistic Rather Than Collectivistic

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Justice should be individualistic in its application, not collectivistic. It is individuals rather than groups who are deserving of reward and punishment. If we punish groups or individuals because they are a part of a larger group, then our punishment will be collectivistic, or we will be guilty of mass punishment, as it is sometimes called. This type of punishment is a source of a good deal of the injustice in our society. It is very closely related to discrimination by race, religion, sex, age, and mental or physical handicap, and it tends to unjustly punish individuals simply because they are members of some group against which many people are prejudiced.

The military, among other institutions in our society, is often guilty of collective punishment. If one serviceman does not keep his area clean, his bed made, or his uniform up to snuff, then everyone in his barracks is punished by being denied passes or other privileges. The military’s purpose in doing this is to prod the nonwrongdoer into pressuring the wrongdoer to correct his ways, but the punishment as it is meted out to include the innocent is unjust. The offending serviceman should alone be punished, and not his obedient peers. Of course the military might cite another overriding purpose: the concern that individuals work together as a team or unit. On the battlefield, it may argued, the ability to work as a unit might be the difference between life and death.

Comparative Justice

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Comparative justice deals with the way in which a person is treated in relation to another person. For example, if two people have committed murder under similar circumstances and one gets out of prison in ten years but the other is executed, this might be considered as comparative, but not collectivistic injustice, depending, of course, upon the circumstances, extenuating or otherwise, surrounding each crime.15

7.10: John Rawls and His Theory of Justice

1. 7.10 Evaluate John Rawls’s theory of justice as fairness

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American philosopher John Rawls (1921–2002) has developed an influential theory of “Justice as Fairness.” In this module, the ideas of Rawls are contrasted with those of an equally prominent American philosopher, Robert Nozick (1938–2002).

7.10.1: Natural Rights Versus Rights of a Just Society

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John Locke (1632–1704) and the more contemporary philosopher Robert Nozick believe that human rights are natural rights, that is, they somehow exist in human beings through nature.

According to these two philosophers, these rights are life, liberty, and property. According to Thomas Jefferson (1743–1826), in the Declaration of Independence, they are life, liberty, and the pursuit of happiness. These rights, according to Locke and Nozick, cannot be violated by any governmental laws, for example, government invasion of property, government-mandated affirmative action, or government-mandated payments to the poor, especially by taxation of the wealthier members of society. One of the more immediate problems with this theory is where do natural rights come from? Some have said from God, but this theory has all of the attendant problems of proving the existence of God and that such rights were indeed God given.

Rawls, on the other hand, believes that such rights are given to human beings by a just society, in which no one has an unfair advantage over others. In other words, Rawls believes we must adopt principles of social justice which we would agree upon behind what he calls a “veil of ignorance.” That is, we must know how such principles would shape society without knowing our specific position in that society. We must establish such principles, then, without regard to anyone’s position in the society. Behind this veil of ignorance, Rawls’s “original position,” we then could set up principles for fairness and justice for all without regard for anyone’s specific talents, inclinations, social status, political ideology, or any other accidental features of their lives. One might say that the veil of ignorance is a way of looking at society in a neutral manner without regard to individual characteristics of anyone.

7.10.2: Rawls’s Two Basic Principles

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The Equality Principle

Each person has equal rights to maximum liberty compatible with the same amount of liberty for everyone else. In other words, there must be freedom for all.

The Difference Principle

Any inequality is permissible to the extent that it is to everyone’s advantage, including people at the bottom of society’s ranks, and that it arises under conditions of equal opportunity. For example, doctors are necessary for the health and well-being of everyone in a society, so doctors receive more pay and advantages than blue-collar workers because they have spent a great deal of time and money achieving their medical degrees, and having good doctors is advantageous to everyone in the society. However, everyone must also have equal access to medical schools regardless of race or gender, for example. Therefore, such inequality is permitted in a just society.

The first principle gives members of society the freedom advocated by Locke and Nozick. However, the second principle gives people many more individual rights not among their so-called natural rights; for example, people at the bottom of the economic scale have the right to a minimum income which must be supplemented by government taxes on others. Rawls believes that justice as fairness requires the distribution of wealth to all members of society, and the rule governing the distribution of wealth must give no member of society unfair advantage over other members. Rawls believes that we can guarantee a just and fair outcome by requiring the rule be acceptable to all members of society without their knowing how the rule will work out for them, that is, they will know how wealth will be distributed among different segments of society without knowing to which segment they will belong. They must be willing to accept the rule no matter what their segment will be. This, of course, would violate Locke’s and Nozick’s natural rights theory. Rawls would accomplish the distribution of wealth by what is known as a transfer of payments, that is, he would tax those nearest the top ranks of wealth to supplement the income of the poor.

7.10.3: Difference between Nozick and Rawls

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Nozick, who is a libertarian, seeks to maximize individual liberty and minimize or even eliminate any violation of liberty by government or others. He believes that the wealth of society is the sum of individuals’ wealth. Rawls, on the other hand, who is considered a welfare liberal or welfare capitalist, believes that the wealth of society is society’s wealth and that all members of society cooperate in creating that wealth by making it possible for individuals to earn the wealth they do because of mutually agreed-upon fundamental rules of society.

7.10.4: Advantages and Disadvantages of Rawls’s Theory

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The first advantage of his theory is it seems to fit in with the ideals of the liberal capitalist structure of democratic nations like the United States. It allows for individual freedom but still allows for a fair and equitable distribution of wealth to all members of society. It also provides for a way to arrive at a just set of rules and principles by using the veil of ignorance as a method. It tries to balance individual rights and freedom with the good of everyone. Whether it succeeds or not is another story.

One of its disadvantages is it does not fit in with the strong individual rights theories of conservative members of our society who believe that all people have the rights to their earned and inherited wealth and property and should not have to share them with other members of society unless they wish to. We know that many wealthy members of society will voluntarily share their wealth with the poor or underprivileged, and the government gives them an incentive to do so by allowing them charitable tax deductions, but critics of Rawls believe that people should not be coerced or forced in any way to share their wealth either earned or inherited through mandatory government taxation. Second, can members really operate out of a veil of ignorance? Do they want to? It’s an interesting idea, but how many people really want to set up principles of justice without considering where they will fit into the overall scheme of things? How does Rawls’s theory fit in with the exorbitant amounts of money acquired by entertainers or sports figures as opposed to teachers, for example? It’s true that such people provide entertainment for all, but is the service they provide worth the millions and billions they make over one year or more? It is true that such people are taxed, but there are also loopholes for them to pay less. I’m not saying that Rawls would approve of such exorbitant incomes, but doesn’t his theory lend itself to such excesses? Last, is Rawls’s theory of justice with its equality of distribution the best theory? Before we seek some kind of solution to problems of justice, let’s look at the moral issue of punishment, which is even thornier than reward because it involves doing harm or injury to people, raising the question of whether it can be ethically justified at all.

7.11: Human Rights

1. 7.11 Evaluate human rights

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For the past half-century, the language of rights has dominated moral, social, and political debate in the United States and is currently receiving increased international attention. According to Charlotte Bunch (1944–), the promotion of human rights is a widely accepted project. Regarding the international scope of human rights, Bunch stated,

. . . it [human rights] is one of the few concepts that speaks to the need for transnational activism and concern about the lives of people globally. The Universal Declaration of Human Rights, adopted in 1948, symbolizes the world vision and defines human rights broadly.16

Although this goal is broadly accepted, there is much debate about the nature and kinds of rights that individuals or groups (should) have. In practice, governments decide the limits of human rights.17

Present-day theories of human rights are the product of a long history of philosophical, religious, moral, and legal thinking in the West. Both the language and conceptual frameworks of human rights contain assumptions about what it means to be an individual and presuppositions about the nature and structure of society. These assumptions do not necessarily carry over to non-Western cultures and languages. For example, Asian values offer both interesting and productive alternatives to the rights-based moralities that dominate Western societies. The theory of Confucian “role ethics” is one such alternative.

The development of rights-based thinking in the West goes back to the Judeo-Christian tradition and the ancient Greeks. Modern philosophical views, most notably the contributions of John Locke (1632–1704), Immanuel Kant (1724–1804), and John Stuart Mill (1806–1873), have refined and clarified our current notion of human rights. Rights, as understood today, derive from the Enlightenment conception that viewed individuals as free, rational, autonomous moral agents. Therefore, it follows that such individuals are both entitled to make and are capable of making rational choices that influence and direct their personal pursuit of human happiness. In the United States Declaration of Independence, Thomas Jefferson (1743–1826) eloquently expressed these ideas. He wrote,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends it is the Right of the People to alter or abolish it . . .18

Locke referred to such rights as natural rights. Generically the notions of natural rights and God-given rights are subsumed under the broader notion of human rights.

7.11.1: The Concept of a Right

LISTEN TO THE CHAPTER AUDIO:

Rights  are powerful concepts because they allow the bearer to make claims on individuals, employers, and even the government. Rights are essentially entitlements:

To have rights is to be entitled to act on our own or be treated by others in certain ways without asking permission of anyone or being dependent on other people’s goodwill. Rights entitle us to make claims on other people either to refrain from interfering in what we do or to contribute actively to our well-being not as beggars, who can only entreat others to be generous, but as creditors, who can demand what is owed to them.19

Viewed in this light a right is the rational basis for a morally justifiable demand.

Mill argued that social utility is the foundation for rights. According to Mill,

When we call anything a person’s right, we mean that he has a valid claim on Society to protect him in the possession of it, either by the force of law, or by that of education and opinion.

To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask, why it ought? I can give him no other reason than general utility.

Finally:

Justice implies something which it is not only right to do and wrong not to do, but which some individual person can claim from us as his moral right.20

Rights are powerful concepts, and their claims extend to others as binding obligations. That is to say, rights impose moral duties.

Kant also stressed the correlation between rights and duties. For Kant, a right is the “moral capacity to bind others.” Kant’s conception draws heavily on the etymological meaning of the Greek word for duty,  deon , which literally means “that which binds.” Kant’s views on rights, not surprisingly, will draw heavily on the ideas of autonomy, dignity, and respect for persons. Some contemporary philosophers have used Kantian ideas to ground the concept of rights. Consider the following:

Rights, we are suggesting, are fundamental moral commodities because they enable us to stand up on our own two feet, “to look others in the eye and to feel in some fundamental way the equal of anyone. To think of oneself as the holder of rights is not to be unduly but properly proud, to have that minimal self-respect that is necessary to be worthy of the love and esteem of others.” Conversely, to lack the concept of oneself as a rights bearer is to be bereft of a significant element of human dignity. Without such a concept, we would not view ourselves as being entitled to be treated as not simply means but ends as well.21

Professor of International Relations Jack Donnelly stressed the importance of both the unconditional nature of human rights and their universality. For Donnelly:

To claim that there are human rights is to claim that all human beings, simply because they are human, have rights in this (unconditional and universal) sense. Such rights are universal, held by all human beings. They are equal: one is or is not human, and thus has or does not have (the same) human rights equally. And they are inalienable: one can no more lose these rights than one can stop being a human being.22

The nature of human rights dictates that they must be taken seriously.

The International Human Rights Regime is based on:

· Key documents

· Covenants

· International agreements.

These documents structure the current human rights debate which is broad in scope including individual and political rights, economic rights, the right to development, and the right to self-determination. Central to this regime is The United Nations Declaration of Human Rights, enacted in 1948. The excerpts from this document, cited later, are intended to give the reader a sampling of the rights included in this document:

· Article 1

· All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

· Article 3

· Everyone has the right to life, liberty and security of person.

· Article 4

· No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

· Article 5

· No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

· Article 6

· Everyone has the right to recognition everywhere as a person before the law.

· Article 9

· No one shall be subjected to arbitrary arrest, detention or exile.

· and

· Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

The “Declaration” has 30 such articles that present a “common standard of achievement for all peoples and all nations.”23 Note that the words “all human beings,” “everyone,” and “no one” conceptually anchor the document’s claims to unconditionality and universality.

7.11.2: The Importance of the Contribution of Human Rights to Civilization

LISTEN TO THE CHAPTER AUDIO:

Following is a summation of the four points developed by Chandra Muzaffar (1947–) in his keynote address given at the 1994 conference on “Rethinking Human Rights.” These remarks highlight the important contributions that human rights have made to civilization. The four points are as follows:

· Human rights have strengthened the position of the individual as never before in history. These rights inhere in the individual as a human being. One does not owe these rights to a benevolent government.

· Because it empowers individuals, the human rights tradition has contributed toward the transformation of authoritarian political systems into democratic political structures. Human rights have created the political space necessary for the development of a civil society.

· Human rights have checked the abuse and arbitrariness in the exercise of power by those in authority.

· Human rights have compelled political leaders and other wielders of power to become more accountable to the people. Human rights brought the government under the control of the governed.24

Thus, human rights transverse national borders and are important matters of concern. In short, human rights are everyone’s business.

7.11.3: Problems with Human Rights

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Human rights and rights-based moralities present unique problems. Over half of the world’s population has no intimate knowledge of rights or rights-based frameworks. They do not live in rights-based cultures. So, from a global perspective, the first major difficulty is the problem of universality versus cultural or developmental relativism. In other words, are human rights universal principles or culturally shaped values?

A second significant challenge deals with enforcement. What should be done about human rights violations? What grounds can be cited for international intervention or the imposition of sanctions? Currently there is no consensus about these issues.

Finally, there are competing priorities among various human rights as well as categories of rights. For example:

· Right to life versus right to choose.

· Civil and political rights versus economic, social, and cultural rights.

· Individual rights versus citizen duties.

8.1: Conflicting General Moral Issues

1. 8.1 Report moral issues that must be resolved or synthesized before setting up our own moral system

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In dealing with traditional ethical theories, several general moral issues that must be resolved or synthesized in some way before we can begin to set up a moral system of our own. They are the issues of consequentialism versus nonconsequentialism, self-versus other-interestedness, act versus rule, and emotion versus reason.

8.1.1: Consequentialism Versus Nonconsequentialism

LISTEN TO THE CHAPTER AUDIO:

In order to set up a moral system, it is important to decide first to what extent it will be based on consequences and to what extent it will be nonconsequentialist. In earlier criticisms, it was concluded that one simply cannot be moral without taking into consideration the consequences of moral decisions, acts, or rules. At the same time, the difficulty of considering only consequences or ends without regard to means or motives was evident. The cost–benefit-analysis, or end-justifies-the-means, problems brought this home, and Kant’s Practical Imperative pointed to a way out of this problem. Thiroux’s synthesis of this conflict is to have a basic concern with consequences in one’s moral system and yet be aware that the end, even a good end, does not always justify the means or motives leading to it. How these two attitudes are to be synthesized will be shown later in the module after Thiroux’s moral system has been presented.

8.1.2: Self- Versus Other-Interestedness

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Although people certainly are justified when they consider themselves as a vital factor in any moral system they may establish, it is unlikely that ethical egoism, or self-interest, will provide a workable basis for a valid moral system because of its many disadvantages. Therefore, Thiroux takes the utilitarian viewpoint of always striving to bring about the best good consequences for everyone, which, of course, includes self. Given the necessary modifications, Thiroux felt that there is a greater chance of maximizing good consequences and attaining justice and fairness with this approach.

8.1.3: Act Versus Rule

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Another problem in establishing a moral system is how to allow for the greatest amount of individual freedom while still incorporating stability, security, and order. The act approach allows for the most freedom; the rule approach imposes certain constraints on freedom, yet provides for greater stability. Thus, an attempt is made to bring in the best of both approaches by establishing rules that nevertheless include a strong element of freedom within them.

8.1.4: Emotion Versus Reason

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The issue of emotion versus reason will be discussed largely as a part of the justification for the first assumption that follows, but the synthesis here will be to base a moral system on reason without excluding emotions, which are a definite part of morality; that is, it is natural to feel very strongly about most moral issues, and these feelings should contribute to the formation of a moral system. However, a viable moral system should be based upon reason.

8.2: Basic Assumptions

1. 8.2 Identify several basic assumptions concerning what constitutes a workable set of standards for morality and their rationale

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First, it is important to clearly delineate several basic assumptions concerning what constitutes a workable set of standards for morality. These assumptions and their rationale are listed later.

In order for a moral system to be tenable and viable, it ought to have the following characteristics:

1. It should be rationally based and yet not be devoid of emotion—this is implied in criticisms of a religiously based morality and of an intuitionally based act nonconsequentialism.

2. It should be as logically consistent as possible, but not rigid and inflexible—this was implied in criticisms of egoism, especially universal ethical egoism, and of the rule nonconsequentialist theories.

3. It must have universality or general application to all humanity, and yet be applicable (in a practical sense) to particular individuals and situations—this was implied in criticisms of both act consequentialist and act nonconsequentialist theories, as well as individual and personal ethical egoism (for their highly individualistic approach to morality), and rule nonconsequentialist theories (for their failure to be applicable to practical situations).

4. It should be able to be taught and promulgated—this is implied in criticism of all forms of ethical egoism and all act theories of morality.

5. It must have the ability to resolve conflicts among human beings, duties, and obligations—this was implied in criticisms of both universal ethical egoism and Kant’s Duty Ethics.

8.2.1: Including the Rational and Emotional Aspects

LISTEN TO THE CHAPTER AUDIO:

It is an obvious empirical fact that human beings are both feeling (emotional or  affective ) and reasoning (rational or  cognitive ) beings, and that in order to establish any sort of system that can be applied to everyone, we have to take these two human aspects into consideration. However, if one relies only upon our emotions when making moral decisions, one can run into severe problems in resolving conflicts that may arise from the very different and individual feelings experienced. Also, if one thrown back solely upon feelings as the basis of moral decisions, then there is no common ground for arbitration between what A feels is right and what B feels is right, for anyone’s feelings are as good as anyone else’s. How can a person argue against the way I feel or the way you feel if feelings are our sole basis for deciding what is right and wrong?

Just because feelings are difficult to work with when making moral decisions does not mean that morality must be a completely cold, calculating, and unemotional affair. After all, moral issues are some of the most emotional ones individuals face; therefore, it is too much to expect that persons will not feel strongly about them. However, as a sole basis for making moral decisions, feelings are too unreliable and individualistic, and some other basis that is fairer and more objective is needed. That basis is reason.

The word  reason  implies giving “reasons” for a decision or an action, and such an activity already involves more than merely expressing feelings. Further, reason, which is an ability, should be differentiated from  reasoning , which is an activity; reason is a power that human beings have, whereas reasoning is something they do. All humans have the ability to reason in varying degrees, but there are formal rules for reasoning that can be taught to all and can thereby form the basis for our understanding each other and for supporting any decisions made or actions performed.

Reasoning implies several things:

1. Logical argument, which includes supplying empirical evidence in support of one’s position.

2. Logical consistency, which involves avoiding fallacies and making sure that one’s argument follows smoothly from one point to the next until it arrives at a logical conclusion.

3. A certain detachment from feelings; this springs from reasoning’s formality, which forces one to consider the truth and validity of what the individual and others are thinking and saying.

4. A common means by which differences in feelings, opinions, and thoughts can be arbitrated.

At this point, consider an example from the controversy over abortion. Suppose that Tom says he “feels” abortion is always wrong, and Barbara says she “feels” abortion is always right. Here are two sets of opposing feelings; and if feelings are our only basis for deciding what is right and wrong, where can one go from there? True, Tom can attempt to refuse to let his wife have an abortion, or he can lobby for legislation to prevent any woman from getting one, whereas Barbara can have an abortion herself or encourage other women to have one, or lobby for legislation opposed to Tom’s. However, how will any of us, including Barbara and Tom, know whose position is the correct one? All one can know is how the two of them feel and that their feelings differ radically. If Barbara and Tom were the only two people involved, then perhaps one could live with their conflicting feelings; however, also involved are the lives of fetuses and of other people affected by the results of their feelings, decisions, and legislation.

If Barbara and Tom were asked why they feel the way they do, the process of reasoning has already begun. Tom might give the following “reasons”:

1. All human life is precious, including that which is yet unborn, and only God has the right to decide which life should begin or end and when.

2. Human life begins at conception.

3. Women do not have absolute rights over their own bodies when those bodies contain another life.

4. Once a woman has become pregnant, she has a moral obligation to carry the fetus to term regardless of any and all reasons to the contrary.

On the other hand, Barbara might give the following reasons:

1. A person who is already born has a greater right to life than one who is yet unborn.

2. Only a woman can decide whether she ought or ought not to bear a child because she has absolute rights over her own body.

3. Human life does not begin until viability (about the 28th week of pregnancy) or until the child actually is born.

Once reasons have been given to work with, one can begin to examine the basis for Barbara’s and Tom’s feelings, bring evidence and facts to bear on their reasons, and test these bases with rational and logical arguments. It is possible, for example, examine all of the biological, sociological, and psychological evidence that is available concerning the issue of when human life can actually be said to begin. One can also examine all of the arguments and evidence for the existence or nonexistence of God, and can consider if He exists, whether He is the lord of life, or whether He has delegated the authority for life-and-death decisions to human beings. Next, individuals can examine the reasons for terminating a pregnancy and see if any evidence can be shown to justify any such termination. Then one can look into criteria for comparing the worth of an already existent human being with one yet unborn. The main point here is that whereas, earlier, Barbara and Tom were merely spouting their strong feelings, they are now in a position to critically evaluate and analyze those feelings by bringing evidence and reasoning to bear upon them. In this way, a broader and less arbitrary basis upon which one can grapple with the difficulties associated with each position on abortion has been built.

8.2.2: Logical Consistency with Flexibility

LISTEN TO THE CHAPTER AUDIO:

It is important that any ethical system be logically consistent so that there will be some stability to our moral decision making. A moral system that says that in situation A1, one should kill a person, but in similar situation A2, one should not give neither a guide nor stability, only capricious whim. On the other hand, if a moral system says that one can never in any situation kill anyone and still be moral, then all of the complexity and diversity that comprise humanness has become rigidly boxed in, with no possibility of justifying ourselves by means of the extenuating situations individuals often face. One must, instead, strive to be as logically consistent as possible in morality and yet allow enough flexibility so that our system will remain truly applicable to the complexity and variety of human living.

8.2.3: Including Universality and Particularity

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Any morality that attempts to help all human beings relate to each other meaningfully must strive to possess a universal applicability. If, like individual or personal ethical egoism, a moral system applies only to one person, then all remaining human beings are essentially excluded from it. Also, if it depends upon a belief in a certain supernatural being and a set of dogmatic “truths” that have no conclusive evidential or rational basis, then those who do not believe at all, or who believe only in part, are also excluded. Therefore, it is very important that any moral system apply to human beings in general, which means that it must be broadly enough based not to exclude anyone who is striving to be good and to include as many meaningful and workable moral systems as possible.

In its universality, however, one’s moral system should not become so generalized and abstract that it cannot be applied to particular situations and individuals. Morality, after all, always takes place at particular times, in particular places, in particular situations, and between or among particular individuals. It never takes place in the abstract.

Morality may be theorized about or discussed in the abstract, but decisions, actions, or failures to act always occur in concrete, everyday situations. That is why, for example, universal pronouncements, such as “Abortions are never justified,” although they do sound highly moral and certainly apply to all people at all times, fail to take into consideration the many serious implications for all those involved in the situation surrounding an abortion. Such pronouncements never provide concerned individuals with any real criteria for weighing one human life (the mother’s) against another (the fetus’s) when one is definitely threatened by the other. The particular situation may be that the expectant mother has a family of little children and a young husband, all of whom need her very badly. Yet if she herself feels bound by the abstract absolutism of the abortion pronouncement thus cited, she is almost forbidden to consider that one life has to be sacrificed, either hers or that of her unborn child. In short, the particular situation is often much more complicated than the abstract generalization allows for. Therefore, in such cases the generalization is virtually unusable.

8.2.4: Ability to Be Taught and Promulgated

LISTEN TO THE CHAPTER AUDIO:

If any moral system is to be applied to more than one person, it must be able to be promulgated, that is, laid out for people to see and understand. It should also be teachable so that others can learn about it regardless of whether they wish to accept or reject it. If, as with egoism, teaching or promulgating one’s moral theory violates the very basis of that theory, then it must be kept secret, and therefore it can have no real applicability to anyone other than the individual who holds it. Furthermore, if there is really nothing to teach except, for example the concept that one should act on the basis of what one feels to be right without considering what those “right feelings” really amount to, then the moral system is questionable because it cannot be passed on to anyone in a meaningful way. These problems are very serious because the greatest emphasis for morality is the social emphasis. If a moral theory is not teachable or cannot be promulgated, then how can it be applicable to society or any part of it beyond the one person who holds it?

8.2.5: Ability to Resolve Conflicts

LISTEN TO THE CHAPTER AUDIO:

A final consideration is that a workable moral system must be able to resolve conflicts among duties and obligations, and even among its participants. In universal ethical egoism, for example, if it is not possible to decide whose self-interest should be served when self-interests conflict, then the entire theory is thrown into doubt, for it states, on the one hand, that everyone’s self-interest should be served, and yet, on the other hand, it does not say how that can be done when there is a conflict of interests.

Further, if any moral theory or system proposes a series of duties or obligations that human beings ought to perform or be responsible for, yet fails to tell people what they should do when these conflict, then again the system is unworkable. For example, if a system proposes that it is wrong to lie and also wrong to break promises, yet does not tell its adherents which of the two wrongs takes precedence when these conflict, then how can one know what to do if one has promised to protect the lives of some friends but must tell a lie to a killer who is in search of them? Simply to say that both actions are wrong or right will not help us when confronted with an actual moral decision. People must know, when clashes between or among moral commandments occur, how they can choose the action that will be most moral. Any system that does not provide for the resolution of such conflicts may be abstractly or theoretically meaningful, but, again, in the concrete moral situation it will be of very little use to human beings who are striving to do the right thing. A system such as Sir William David Ross’s Prima Facie Duties, even with its problems, might be helpful as a guide to resolving conflicts.

Keeping these assumptions in mind, then, the most important question one must face is how to go about setting up a moral system that is rationally based and yet not unemotional; is logically consistent, but not rigid or inflexible; is universal, and yet practically applicable to particular individuals and situations; can be taught and promulgated; and can effectively resolve conflicts among human beings, duties, and obligations.

After some consideration about problems having to do with absolutes and freedom, two conclusions were drawn:

1. There are moral absolutes that can be known.

2. Although their freedom is limited, human beings can be said to be free in a very real sense.

Now, because of the variety, diversity, and complexity of human beings, individuals must move from absolutes to “near” absolutes, which are labeled basic principles. It now seems that the problems of morality center essentially in these two areas: that of working with basic principles in order to avoid the chaos of  situationism  and intuitionism, while at the same time allowing for the freedom that individual human beings and groups require if they are to work with such basic principles in a meaningful, practical, and creative fashion. The way this can best be accomplished is to discover those principles that are indeed truly basic and necessary to almost any moral system or theory and to be sure that individual freedom is one of them.

8.3: Basic Principles, Individual Freedom, and Their Justification

1. 8.3 Recall principles necessary to the formation of any ethical system that will successfully apply to human morality

LISTEN TO THE CHAPTER AUDIO:

What is needed first is a basic principle or principles. If one remembers the ethical systems described so far, it will note that each of them has at least one basic principle and that some have more. In ethical egoism, the basic principle is self-interest; in utilitarianism, it is the interest of all concerned; in Kant’s system, it is the Categorical Imperative, the emphasis upon duty rather than inclination, the reversibility criterion, and the principle that each human being is an end and not a means only. Even the ethical system that advocates rules the least and stresses particular situations the most— situation ethics —still has one basic principle, which is love.

Is there any way to cut across all of these ethical systems and arrive at basic principles with which they all might agree? Here Thiroux is not referring to agreement in the sense of how these basic principles are carried out or acted on; rather, the concern is about agreement as to the ultimacy of principles necessary to the formation of any ethical system that will successfully apply to human morality.

8.3.1: Choosing Principles

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In choosing principles, one must first decide on how many principles the system will have. One principle does not seem to be enough, and yet in the interest of simplicity, neither does one want too many. Experience suggests that one principle will not cover everything that is needed in a system. For example, Michael Scriven states that the equality principle (“Everyone has equal rights with you in moral matters until they prove otherwise”) is the only one needed in his moral system. This principle is certainly admirable in that it sets up individual freedom, but it doesn’t state any other values (freedom from what, to do what?), nor does it specify exactly what “until they prove otherwise” means.

One of the most popular rules or principles people put forth when asked what they base their ethics on is the Golden Rule, or what Kant called “the reversibility criterion.” It can be stated in many ways, but the usual way is, “Do unto others as you would have them do unto you.” In other words, if you want to find out what the moral thing to do is in any situation, you should ask yourself what you would like done to or for you if you were going to be the recipient of your own moral action. There is nothing really wrong with putting oneself in the other person’s shoes, as the saying goes, but as a primary and especially only principle on which to base a moral system, it is not adequate.

First of all, in applying the Golden Rule, it is assumed that what the other person will want or need is the same as what we will want or need, and this is not always true. For example, some people might thrive on physical contact that could cause minor or sometimes major injury. Some people feel their weekend is not complete until they have had at least one fistfight. Such people, going only by the Golden Rule, may figure that’s what they would want done to them, and therefore that’s what they should do to others. Perhaps this example is somewhat exaggerated, but it does point out at least one problem with making the Golden Rule one’s only principle.

Second, the Golden Rule doesn’t really tell us what we should do: It only gives a method for testing what we have chosen to do, against how it would affect us if we were to be the recipients of a certain act. That we would consider what we think to be the wishes of others, before we commit ourselves to any action, is in itself admirable, but it does not tell us what we actually should do and thereby fails to provide a realistic basis for choosing among acts that will affect others.

Too often, such principles as the Golden Rule are chosen solely on the basis of custom or tradition. But reflection will reveal that we need to ask ourselves, “What are the important things in life, and which principles will protect and enhance them?” if we are to construct a significant basis for morality. In attempting to do just that, Thiroux first suggests certain principles and shows how almost all ethical systems adhere to them, either explicitly or implicitly. Next, evidence and rational argument are provided in an attempt to prove that these principles are absolutely vital to any meaningful, workable, and livable system of human ethics.

8.3.2: The Value of Life Principle

LISTEN TO THE CHAPTER AUDIO:

The first principle we shall discuss is the  Value of Life Principle . This principle can be stated in several ways, but here it will be stated as follows: “Human beings should revere life and accept death.” No ethical system can function or persist without some statement, positive or negative or both, that reflects a concern for the preservation and protection of human life. It is perhaps the most basic and necessary principle of ethics because, empirically speaking, there can be no ethics whatsoever without living human beings. This does not necessarily mean that no one may ever be killed, or that people should never be allowed to die, or that no one can ever commit suicide, or have an abortion. Each ethical system could differ in many of these areas for logical reasons, but there must be some sort of concern for human life arising out of pragmatic considerations alone.

However, more justification than that of “no human life, no ethical system” can and should be given. Most ethical systems have some sort of prohibition against murder: the “Thou shalt not murder” of Judeo-Christian ethics; the “Never kill” of Kant; the prohibitions against killing in Buddhism, Hinduism, and  humanism , to name but a few. In fact, even the most primitive of societies have had something to say about killing in general. All of these systems do allow killing under some circumstances, but usually they contain very strong commandments against the destruction of human life in general. Many systems extend the not-killing ideal beyond human life to all living things, but all concern themselves with some sort of preservation of human life.

Journal: Moral Codes and Humanitarian Ethics

Examine a system of ethics or moral code with which you are quite familiar (e.g., your religion’s code of ethics, your family’s code of ethics, or your desired profession’s code of ethics), and describe the extent to which any or all of the five basic principles described in this chapter are found in that system or code.

Submit

8.3.3: The Principle of Goodness or Rightness

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The second principle implied in every ethical system is the  Principle of Goodness or Rightness . This principle sometimes is presented as two separate principles:

1. The Principle of Beneficence, which states that one should always do good. 

2. The Principle of Nonmaleficence, which states that one should always try to prevent and avoid doing badness or harm

It will become clear how these relate to each other upon examination of the list what the Principle of Goodness or Rightness demands. If morality means what is “good” or what is “right,” then every system of morality must clearly imply, whether it is stated or not, the Principle of Goodness or Rightness. That is, all ethical systems are based on the idea that people should strive to be “good” human beings and attempt to perform “right” actions; and, conversely, that individuals should try both not to be “bad” human beings and to avoid performing “wrong” actions. By the very definition of the terms morality and immorality we are concerned with being good and doing right. In actuality, the Principle of Goodness or Rightness demands that human beings attempt to do three things:

1. Promote goodness over badness and do good (beneficence).

2. Cause no harm or badness (nonmaleficence).

3. Prevent badness or harm (nonmaleficence).

Ethicists may differ over what they actually consider to be good and bad or right and wrong, but they all demand that human beings strive for the good and the right and avoid and prevent the bad and the wrong. Ethical systems embody this principle by implying, “If human beings are to be good (moral), then they should do so-and-so” (e.g., act in their own self-interest).

8.3.4: The Principle of Justice or Fairness

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The third principle is the  Principle of Justice or Fairness . This concerns itself essentially with the distribution of good and bad on a just and fair basis. It says that human beings should treat other human beings fairly and justly when distributing goodness and badness among them. It is not enough that people should try to be good and to do what is right; there must also be some attempt made to distribute the benefits of being good and doing right.

It is difficult to find an ethical system that does not include some concern for justice. Even ethical egoism, which one might think would have no concern for justice because its major aim is self-interest, does in its most accepted form—universal ethical egoism—want everyone to act in his or her own self-interest. Isn’t this asking, in essence, that everyone be treated justly? Egoists would be strongly opposed to some versions of distributive justice, but they at least advocate that everyone should act in his or her own self-interest. Kant’s Duty Ethics—with its universal applicability, the Categorical Imperative, reversibility criterion, and regard for all human beings as ends rather than means—has justice at its core. Utilitarianism, whether it be act or rule, advocates a general concern for justice because it attempts to deal with the happiness of all concerned, not just self and not even just other people. Judaism and Christianity, in their Ten Commandments—which stress not murdering, not stealing, not committing adultery, and not coveting—are concerned with justice, and the urgings of Jesus to “love thy neighbor as thyself” and “love even your enemies” emphasize justice and fairness, among other things.

These emergency situations are rare exceptions for the most part, but what about using the lottery method to determine who gets money, property, and jobs?

8.3.5: The Principle of Truth Telling or Honesty

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The fourth basic principle is almost a corollary to the Principle of Justice or Fairness; however, it is important enough in its own right to be a separate principle of equal status with the other four. This is the  Principle of Truth Telling or Honesty . It is extremely important, if for no other reason than to provide for meaningful communication, which is an absolute necessity in any moral system or in any moral relationship between two or more human beings. How, indeed, can any moral system function if its participants can never know whether anyone is telling the truth? How, with the stress placed on teaching and promulgating, can moral theories be communicated if no one can be sure whether the communicators are lying or telling the truth? One of the basic criticisms leveled at individual and personal ethical egoism was that such egoists undoubtedly would have to lie or be dishonest in order to satisfy their own self-interests; that is, they would believe in one ethical theory but would have to pretend they actually believe in another. If they did not do this, they probably would not be operating in their own self-interests.

Further, all of morality depends upon agreements between human beings, and how can agreements be made or maintained without some assurance that people are entering into them honestly and truthfully? Therefore, it would seem that truth telling and honesty are important and basic cornerstones of morality. Most ethical systems have some prohibition against lying. In Judeo-Christian ethics, the commandment “Thou shalt not bear false witness” makes it clear that lying is wrong. Kant states that lying cannot be made into a maxim for all humanity without being inconsistent, and most other ethical systems contain at least a general prohibition against lying even if they allow for many exceptional instances in which lying would be “the lesser of two evils.”

8.3.6: The Principle of Individual Freedom

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The fifth and last basic principle is the  Principle of Individual Freedom , or the equality principle, sometimes referred to as the Principle of Autonomy. For Michael Scriven, this is the ultimate moral principle; in fact, he defines morality as “equal consideration, from which all other moral principles (justice, etc.) can be developed” and as the recognition that “people have equal rights with you in moral matters until they prove otherwise.”1 He goes on to stress that this does not mean that they are equal in height or weight or intelligence, but rather that they are equal in moral matters. According to Thiroux, this principle means that people, being individuals with individual differences, must have the freedom to choose their own ways and means of being moral within the framework of the first four basic principles. However, Thiroux did not believe that the equality principle in itself is enough of a basis upon which to develop an ethical system. In fact, this principle is presented last so that it is understood that individual moral freedom is limited by the other four principles: the necessity of preserving and protecting human life; the necessity of doing good and preventing and avoiding bad; the necessity of treating human beings justly when distributing goodness and badness; and, finally, the necessity of telling the truth and being honest.

It seems to be a powerful necessity, if one considers the tremendous variety of human desires, needs, and concerns, that people be allowed to follow the dictates of their own intelligence and conscience as much as possible. Most people will agree with this statement, especially in a definitely pluralistic society such as ours; but they also will want to stipulate that this principle is valid only as long as it does not interfere with someone else in any serious way.

Because no person is exactly like another and no situation is exactly like another, there must be some leeway for people to deal with these differences in the manner best suited to them. However, neither freedom itself nor moral freedom is absolute. For example, just because one man wants the freedom to rape a woman or desires to kill someone does not mean he ought to have the freedom to do so, nor should he have the freedom to steal someone’s new car just because he has the freedom to wish he could have it. The limitations of one’s freedom, then, should be established by the other four principles.

It is important to distinguish between this principle and the second one in that the second principle has to do with the equal distribution of goodness and badness, whereas the Principle of Individual Freedom has to do with the equality of human beings themselves when it comes to moral matters. When Kant stated that each human being ought to be considered an end in himself or herself and not a means for anyone else’s end, he implied the equality principle. The Golden Rule says that one ought to consider other people in the same way that one considers oneself—that is, as one’s equals insofar as moral choices and treatment are concerned. When Jesus was asked, “But who is my neighbor?” in relation to His commandment “Love thy neighbor as thyself,” He answered with the parable of the Good Samaritan, indicating that all people are to be considered as moral equals despite any belief that they might not be one’s intellectual, social, religious, or economic equal. One person should not condemn another for the way he or she lives, no matter how great are the differences in lifestyle, as long as both people adhere to the principles of goodness, justice, value of life, and honesty.

Journal: The U.S. and the Five Principles

To what extent do you believe that the United States, as a nation, follows the five basic principles? Does it follow other principles? Explain.

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8.4: Priority of the Basic Principles

1. 8.4 Identify two important ways in which the priority of the basic principles may be determined

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One of the problems associated with any set of basic principles is the priority in which they are to be used. For example, is the Value of Life Principle always inviolable even though it may bring about badness rather than goodness? Must we be concerned about the distribution of goodness and badness even where such distribution seriously violates someone’s freedom? Further, must a person always tell the truth even if it will bring badness, not goodness? One will recall that the five basic principles—the value of life; goodness, or rightness; justice, or fairness; truth telling, or honesty; and individual freedom—are not absolutes, but near or almost absolutes, and they can be violated so long as there is sufficient justification to do so. But what, for example, constitutes sufficient justification to violate the Value of Life Principle?

Even though, as the reader might suspect, these principles have been presented in the order in which they should be followed, that order and any other considerations of priority that are to be made remain to be justified. First, there are two important ways in which the priority of the basic principles may be determined:

1. A general way, in which the five principles are classified into two major categories based upon logical and empirical priority.

2. A particular way, in which priority is determined by the actual situation or context in which moral actions and decisions occur and in which all basic principles must inevitably function.

8.4.1: A General Way of Determining Priority—Two Categories

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Under the general way of classifying the five basic principles, the first two are logically and empirically prior to the other three and, therefore, fall into the first major category.  Logical priority  means the way in which logic determines the order in which the principles must occur, or in which logical thinking forces us to place them.  Empirical priority  means that priority which is established by evidence gained from observation through the senses. Logical reasoning plays a part here, too, but the emphasis is on evidence derived through the senses.

Logically speaking, the Principle of Goodness comes first. What this means is that in establishing any moral system, one immediately has to assume the ultimate moral principle: goodness. After all, morality, as has been previously stated, means the same thing as goodness, so when speaking of morality, one can assume that this ultimate moral principle is logically prior to any other.

It has also been argued, however, in an empirical sense one cannot have human morality unless one first has human life. If there are no human beings, then there can be no human morality—this is an obvious empirical fact. These two principles, then, are logically and empirically necessary to morality, and because of this necessity, they take precedence over the other three principles and must be placed in the first, or primary, category.

The other three principles fall into the secondary category in the following order: The third principle is that of justice or fairness, because in most human actions more than one person is involved, and some kind of distribution must be established. The fourth principle is that of truth telling or honesty, because it follows from the need to be fair and just in dealings with others. This principle is also very important, as we have seen, because it is basic to human communication and human relationships, which underlie all morality. Last, but certainly not least, is the fifth principle, that of individual freedom, which is important because each individual is unique and in many cases is the only person capable of successfully determining what is good for himself or herself.

By putting five principles into these two major categories, it should not be implied that principles from the secondary category will not, under certain circumstances, take precedence over those in the primary. For example, at many moments in history, human beings have willingly given up their lives so as to preserve their freedom and the freedom of others. The two categories merely give human beings a priority to follow in a general sense; in general, the Value of Life Principle and the Principle of Goodness strike us as being more important than the other three principles because the former are absolutely essential to any moral system or theory.

Justification for Categorizing the Five Principles

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Another justification for placing the five principles in categories is that principles 1 and 2 are often interchangeable with each other in terms of priority, whereas principles 3 through 5 are also interchangeable among themselves. For example, it is wrong or bad to take a person’s life against his or her will, but if this person is violating the first two principles by aggressively seeking to take the lives of innocent people, one’s own included, then one might have the right to attempt to stop the person from doing bad by any means one can, including killing him if no lesser means can be used. In this case, the Principle of Goodness may take precedence over the Value of Life Principle.

As an example of the fact that the second three principles are at times interchangeable, consider the following. If any decision involves freely consenting individuals but does not seriously affect others, then the Principle of Individual Freedom may override the Principle of Justice. The implication is that people ought to be able to do what they want as long as it does not interfere with others in any serious manner. This is why most sexual activity between freely consenting adults may not be governed by the Principle of Justice so much as by the Principle of Individual Freedom. Here, the latter may take precedence over the former.

Rape, child molestation, and sadistic acts performed upon unwilling victims are, of course, violations of the Principle of Justice, but sexual activity agreed upon by consenting adults may not be. Offense to others’ taste may not be a sufficient reason to invoke the Principle of Justice unless other people are being forced into such acts. For example, just because one may feel that group sex is wrong and personally distasteful does not mean that one can impose those feelings upon other freely consenting adults.

To sum up: The principles may overlap, depending upon the particular situation, but basically and generally the first two principles should be stressed and should be seen as interchangeable in terms of priority, whereas the last three should be given lesser status and should also be seen as being interchangeable among themselves in terms of priority.

The Particular Way of Determining Priority: Situation or Context

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In discussing the second, and particular, way in which priority is determined, it is important to note that morality and moral decision making do not occur in the abstract but in concrete, everyday-life situations. Because morality or immorality occurs in particular situations or contexts, such situations and contexts must be observed and analyzed carefully. Any theories or rules or ethical principles that cannot be applied to actual human situations in a meaningful manner should definitely be questioned and probably be discarded as worthless.

This does not mean that one cannot generalize from these particular situations, especially where they are sufficiently similar; on the contrary, it means that generalizations must be made from the particular whenever possible so that the generalizations will be supported with as much real and actual evidence as one can muster. This is a critical reason to oppose a strictly nonconsequentialist approach to ethics—because all actions have consequences and that moral or immoral actions have the most serious of all consequences for human beings. This is also why a strictly “rules” approach to ethics is inadequate; too often rules are so broad and general that there can be no disputing them until one tries unsuccessfully to apply them to a particular situation. It is at this point that people discover that rules may sound and even be moral but simply do not tell people how to act in particular situations A and B.

Nevertheless, one must start from some broad yet humanly applicable basic principles so that we will have some foundation for acting morally and avoiding immorality and so that the profusion of different situations we face in life will not confuse our thinking when it comes to making moral decisions. For these reasons, the earlier-mentioned approach to ethics is  eclectic  (i.e., made up from the best aspects of many different systems). It can also be called “mixed deontological,” or might be described as a combined consequentialist–nonconsequentialist and rules–act approach to ethics—in other words, yet another reasonable synthesis.

This means that one enters all situations with a reverence for human life and an acceptance of human death; with the idea of doing good and avoiding and preventing bad; with the hope of justly distributing the good and bad that result from situations; with the desire to be truthful and honest; and with the idea of granting individual freedom and equality to everyone involved in the situations as long as doing so does not violate the other four principles.

Then each situation will help human beings to determine how these principles will be adhered to or carried out. The particular situation will help them to determine whether a life should be taken or not; how much freedom should be allowed or denied; what is the right or wrong act to perform; and what is the fairest way to act toward everyone. In this way, the unity that human beings need will be provided by the basic principles of morality, whereas the diversity that is also required will be provided by the individual interpretation and carrying out of these principles in particular situations involving moral decisions.

For example, it is quite easy to state that one should not steal from another person under the principles of goodness, justice, honesty, and individual freedom. That is, generally, it is not right to steal from another because stealing violates a person’s freedom to earn and own property; it does not bring satisfaction to the person stolen from (although it may bring satisfaction to the thief); it is not an action with any excellence in it (although a particular thief may be a clever and “excellent” one); it does not create harmony because one should, if one is able, earn one’s own property. And, it is not fair to the other person who has worked hard to acquire what she or he owns.

One could say, then, that people who steal merely because they like to or because they would rather not work are performing a dishonest and immoral action. However, let us suppose that your sister is searching diligently for her gun in order to kill someone who has made her angry. You certainly would be justified in stealing your sister’s gun so that she would not be able to violate all five of the principles by doing something bad, by taking a life, by encroaching on someone else’s freedom, and by not being fair or honest to the person who made her angry. Because the Value of Life and the Goodness principles are more crucial to morality than the other three, you are justified in stealing in this situation because you may save a life and prevent badness by doing so.

Another example actually occurred when a plane with missionaries aboard crashed in the Amazon jungle of South America. The only survivor was the missionaries’ daughter, who attempted to make her way to a village or city to save herself. At one point in her wanderings, she arrived at a river where she found a boat. Following to the letter the Judeo-Christian commandment against stealing, she refused to take the boat and went on wandering through the jungle. She adhered to a moral rule very strictly, but would she have been immoral if she had not? Under the system proposed here, she would not have. She might have waited to see if the boat was abandoned, but after a while, when she was fairly sure that it was and that there was no one around to either use the boat or help her, she would have been justified under the Value of Life principle in violating the rule against stealing.

Let us also note, however, that she was not obligated to take the boat; in her own individual freedom, she could choose—as she did—not to steal, at the risk of losing her life. She could have reasoned further that whoever had left the boat would know the jungle much better than she and would therefore be better able to survive. She also could have marked the spot where she took it, and as soon as she arrived at the first village, she could have sent some villagers back to find the boat’s owner, thus being as fair as she could under the circumstances. Therefore, the situation or context in which one must act does, indeed, have a bearing on how individuals interpret and use the five basic principles as we go about making our moral decisions; however, the principles do remain the basis for deciding or acting at all.

8.5: How the System of Humanitarian Ethics Works

1. 8.5 Examine two human events involving moral issues with respect to the five principles of humanitarian ethics

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Before we conclude this module, let’s examine two human events involving moral issues and run them through the five principles to see how the system works. The two events we will apply the principles to are:

1. Two young adults living together without benefit of marriage

2. Rape

8.5.1: Living Together Without Marriage

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Let’s say that a young man and woman, age 18, want to live together, enjoying the full benefits of a live-in relationship. Both sets of parents object strenuously to their doing so. Is what the young people are seeking to do immoral? Let’s apply the five principles.

The following Table 8.1 lists the five principles with respect to living together without marriage:

Table 8.1: Five Principles for Living Together Without Marriage

Principle	Description
Value of Life Principle	There doesn’t seem to be a violation of the Value of Life Principle in that no one’s life is threatened by this contemplated action. If the woman becomes pregnant, the problem of abortion may arise, but we can presume that the couple will utilize contraception or will have something else as moral set up in the event of pregnancy.
Principle of Goodness	It’s difficult to see any significant violation of the Principle of Goodness unless one applies some specific standard of a particular religion, for example, one specifically stating that such a relationship is immoral. If, however, the couple does not adhere to this religion, even though their parents may, then such a standard cannot be forced on them. The couple evidently feels that living together will bring about goodness for themselves, whereas their parents feel it will not. The parents also may feel that this will not bring about goodness for themselves; that is, it will make them worry, embarrass them in front of family and friends, and generally upset them.
Principle of Justice	The Principle of Justice really seems to be the only principle that would affect the parents. That is, is the distribution of goodness fair if the parents are not made happy by this arrangement? In other words, the man and woman feel that they are being fair to each other and their parents, but the parents feel that their children are not being fair to their families. What their children are doing is offensive to them—to their taste and to their belief in the sanctity of marriage. Two questions arise: “Is this sufficient reason for not allowing the couple to live together and to brand their actions as immoral?” and “For how long must children conform to their parents’ lifestyle or values?” Is not 18 an age at which young people should have the right to live their own lives and take responsibility for what they do?
Principle of Honesty and Truth Telling	There seems to be no violation of the Principle of Honesty and Truth Telling because the young people are quite open about their intentions.
Principle of Individual Freedom	The question really centers upon the Principle of Individual Freedom. If there is no serious violation of the other four principles, then according to this ethical system, individual freedom should be allowed. None of the principles can be clearly shown to have been seriously violated; therefore, although what the couple is doing may be offensive to some people’s (obviously their parents’) tastes, this fact in itself should not deny these young consenting adults the right to live together if they want to as long as they are moral toward each other. This, of course, is another area where the principles should be applied and constitutes a separate issue. We presume that the young people have agreed to be moral toward one another. Serious breaches of morality in their relationship toward one another would, of course, alter the conclusion concerning the morality of their living together. On the face of it, however, there would seem to be no reason not to allow them to live together.

8.5.2: Rape

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Suppose a man desires to rape a woman. Would this ever be a moral act?

The following Table 8.2 lists the five principles with respect to rape:

Table 8.2: Five Principles With Respect To Rape

Principle	Description
Value of Life Principle	The Value of Life Principle would certainly be violated whether or not the woman were killed because her life and its quality would be threatened by the act of rape. She would be sexually violated and also violated in other ways, both physically and psychologically.
Principle of Goodness	Obviously, there is nothing good for the woman in the act of rape. The only possible good in the act would be the pleasure the rapist might get, but that pleasure is certainly to be classed as malicious because it totally disregards the pain and unhappiness of his victim.
Principle of Justice	There is no way the rapist’s act could be considered to be just or fair to the woman because he would be forcing himself on her against her wishes and without her permission, committing the greatest invasion of her privacy and her life.
Principle of Honesty and Truth Telling	The Principle of Honesty and Truth Telling may or may not come into the picture, depending upon whether or not the rapist lies to the woman in order to get her into a situation where the rape can take place.
Principle of Individual Freedom	Because rape violates all of the first four principles, it can never be considered as moral, and, therefore, no man or woman should ever have the freedom to rape another.