The Morality of Punishment (Routledge Revivals)

With Some Suggestions for a General Theory of Ethics

Alfred C Ewing, Alfred Ewing

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415526623
• eBook ISBN: 9781136209840
• Edition: 1
• Topic: Philosophie
• Subtopic: Histoire et théorie de la philosophie

First published in 1929, this book explores the crucial, ethical question of the objects and the justification of punishment. Dr. A. C. Ewing considers both the retributive theory and the deterrent theory on the subject whilst remaining commendably unprejudiced. The book examines the views which emphasize the reformation of the offender and the education of the community as objects of punishment. It also deals with a theory of reward as a compliment to a theory of punishment.

Dr. Ewing's treatment of the topics is philosophical yet he takes in to account the practical considerations that should determine the nature and the amount of the punishment to be inflicted in different types of cases. This book will be of great interest to students of philosophy, teachers and those who are interested in the concrete problems of punishment by the state. It is an original contribution to the study of a subject of great theoretical and practical importance.

CHAPTER VI

The Bearing of our Moral Theory on Practice (or How we are to decide what is right)

THERE is one criticism that will certainly be brought against this book by “the practical man.” It will be said that I have, after all, not told the legislator or judge what penalty he ought to impose for particular crimes, nor the educator what punishments and rewards are most likely to be good for a particular child, or even a particular kind of child. I might well retort that this is not really a charge against me but against all moral philosophers, or that the business of the philosopher¹ must always be primarily theory not practice, to understand the nature of the good and right whilst leaving to others the task of practical application. But I cannot agree with the cavalier way in which most modern philosophers dismiss the question how we are to decide what is right in particular cases. It is all very well to say in a lordly fashion that it is not the business of Ethics to decide particular cases—and in a sense I quite agree with this statement; but if so, how are they to be decided at all? We decide them in practice and rely on our decisions as to a large extent justified. We even sometimes give seemingly good reasons for them. How is this possible? If our reasons are ultimately based on general ethical principles, surely they ought to fall within the scope of Ethics as a department of organised knowledge? If they are not based on them, surely they cannot possibly provide an adequate reason for considering any action right? Must there not be some way of justifying our conclusions? Has Ethics nothing to say in the matter? Can no account be given of our practical decisions at all? It is no use to say that this is not the business of Ethics but of “casuistry”; the objection seems to me purely verbal. If I am allowed to talk about this topic at all, I do not mind what name is applied to it, provided only the disreputable associations of the word, “casuistry,” due to certain abuses on the part of the Jesuits, are not allowed by the reader to prejudice him against what I have to say. Also, secondly, if ethical principles do not apply to particular right acts they can hardly be true even for the philosopher; and if they apply at all, their application cannot be without interest for Ethics. Even if it were treated as a separate science, Casuistry¹ would have to be a deduction from Ethics. To reason about what we ought to do can hardly be useless, unless it is bad reasoning (i.e., fallacious).

The only way of avoiding the responsibility of helping in decisions as to what we ought to do is for the philosopher to say frankly, as Prof. Prichard² does, that there are no general ethical principles, but we know immediately what is right in each particular case, and leave it at that. This view involves the frank abandonment of all attempts to systematise, even partially, our knowledge of what is right; but we cannot at the present stage of our argument exclude the possibility that we may eventually be driven to this. But, before we abandon the attempt, we must at any rate make it. The problem is an urgent one for every branch of Ethics. How can we decide what is right in particular cases? Can we deduce it at all, or must our decision be “intuitive”? If “intuition” and inference both play a part in it, what are their respective functions? What is the relation of theoretical Ethics to practical life? I have in the previous chapters given an account of the good and evil done by punishment and reward; but my task would not be completed if I did not say something about the bearing of that on particular decisions as to what punishment (or reward) was right in a given case. I cannot indeed attempt to make any definite suggestions for reform because that would require a knowledge of other subjects than Ethics; but if I fail to do this I am all the more bound to say something about the general relation of ethical theories to practice, though the problem seems to have been shirked by most recent philosophers. It is not, however, a matter that can be discussed in relation to punishment (and reward) by themselves, but only as a general question common to all branches of ethical theory, and it is as such that I must deal with it. Those who do not wish for a general disquisition on Ethics as a branch of knowledge may omit this chapter, as the views maintained here are not presupposed in my treatment of punishment (and reward) elsewhere. But I cannot possibly do justice to my own topic without going back to more general principles at this point. The present chapter is therefore intended as a contribution to general moral philosophy, an attempt to work out my own theory of it as regards certain of its chief problems; and, incomplete as it necessarily is, I should be very glad if it received attention as a modest attempt towards developing such an outline theory of Ethics as will meet some of its most pressing difficulties.

As we turn to our problem, we see at once that there is one simple solution which must have occurred to almost everybody who has ever studied Ethics. Why should not Ethics provide a set of general principles by a direct application of which we can decide what is right in all particular cases? Why should not all our particular duties be strictly deducible from Ethics as a science giving us general principles?

There are two methods by which it has been held possible to effect such a deduction. The first is by appealing to universal laws. According to this view, of which Kant is the most celebrated exponent, an act is right not because of its consequences, or because it does good, but because it is a particular instance of a universal law known a priori to be obligatory in all cases, e.g., a particular lie is wrong, not because it produces bad consequences for anybody, but because there is a categorical imperative—Thou shalt not He, and it is part of the nature of any categorical imperative (i.e., moral law) to admit of no exceptions whatever. The chief defects of a view like this, when universalised and applied to all questions of conduct, are (1) that it breaks down where two different laws conflict, i.e., an exception must then be admitted to one at least of the two laws; (2) that, since it would clearly be wrong, other things being equal, to produce evil consequences by an action of ours if we could help it, we are driven after all to consider the consequences, and these will be different in each individual case; (3) that there are very few, if any, universal laws which can be, even plausibly, held to be capable of being known and formulated without introducing a reference to the consequences they will produce in different instances.¹ For example it was very easy for Kant to lay down the general rule that we ought to develop our talents, but he could on his principles hardly answer the question—what talents? We ought not and are not able to develop them all equally, so—which is to be preferred to which? and—how much time and what method ought we to devote to each? The answer to these questions will be different for each individual case, and it would be totally impossible to deduce the answers simply from universal laws without including in the laws a reference to the varying capacities of different individuals and to the effects of education on these, i.e., the reference to empirical circumstances and consequences which Kant was so studious to avoid. Otherwise we should have no guide as to which faculties ought to be developed and in what degree. As a result of considerations like these there are now hardly any philosophers left who would hold that we can deduce from universal laws what it is right to do in all particular cases.¹ On this point it would be almost unanimously held, even by Kant’s greatest admirers, that his system breaks down; it may be of the highest value as an account of the general nature of moral law and duty, but it cannot be used to deduce our particular duties.

But there is another principle of deduction which has greater plausibility and is still popular among ethical theorists. The view to which I am referring is as follows. It is held that the right action under any given circumstances is always the action in the agent’s power which is likely to produce the greatest good and that this is the only and sufficient reason why it is right (though not necessarily the definition of Tightness). After all, it is said, what can make an act right but the good it does? It can surely never be right to perform any action except the one which will, as far as we can see, be likely to produce the greatest good possible under the circumstances for all concerned? In particular cases, therefore, we have to decide what is right by determining how much good is likely to be produced by each of the alternative acts between which we are choosing. Now there are various kinds of things² which are good in themselves and not merely as means to something else, for nothing would be good even as a means unless it produced something that was good-in-itself, i.e., good otherwise than as a mere means. The justification of an act always lies ultimately in the production of these goods or the removal of corresponding evils. But, since the good (and bad) effects of an act are generally manifold, we can only determine the total good likely to be produced if we sum the good of these varied effects.¹ (Here and throughout this chapter “good” is used not in the narrower, though very important, sense of goodness of moral character alone, but as including all kinds of real value other than value merely as a means. Thus moral character, knowledge, experience of beauty and pleasurable sensations would be all goods of different kinds and degrees.) The method will therefore consist, first, in seeing how much good of each kind is likely to be produced by each alternative act, secondly, in putting these quantities together so as to deduce from them the total amount of good likely to be produced by each act, and, thirdly, in comparing these totals so as to see which act will produce the greatest. Thus of two alternative courses one may yield more pleasure, but the other be more conducive to intellectual development, or of two rival systems of training one may be better aesthetically, but the other supply more knowledge and stimulate thought more effectively, so we should have to decide between them by determining the amount of æsthetic, intellectual and hedonistic (pleasure) value of various kinds that each would give, adding these amounts so as to determine the total value of all kinds likely to be produced in each case and then choosing the act which produced the greatest. In making our calculation it would be necessary also to subtract any incidental evil, e.g., the unpleasantness of any boredom which may be involved in the process of learning or any of those risks which affect in varying degrees all human activities.

It must be admitted indeed that we may be practically certain that an act is right or our duty without having first summed up the good which it is likely to do and proved this to be greater than the good likely to be done by alternative courses of action, but it is possible to admit this and yet hold the only ultimate reason why it is our duty, the only real justification for it to be that indicated in the above description of the method. If it is the right action it must be because its Tightness is deducible by this method, though we in fact may not have deduced it. The function of Ethics is, then, first to determine what is “intrinsically good” or “good-in-itself” (a knowledge which, as would usually be admitted by the supporters of the view, cannot be reached by strict logical proof but only with the help of something of the nature of what is commonly called “intuition”), and afterwards to apply this knowledge to particular cases in the way just indicated. This is the view both of “Utilitarians,” in the ordinary sense of the term, and of writers like Dr. Rashdall.¹ It may be held equally by someone who regards pleasure as the only good and by someone who believes in a number of goods of quite different kinds, including but not confined to pleasure.

This doctrine has been expounded at some length here because it is the only theory according to which it can reasonably or plausibly be maintained that all particular duties are completely deducible from more general principles of Ethics, i.e., according to this view, principles as to what is good-in-itself. The method of Kant, even if applicable to some duties, is clearly not applicable to all, and there are few indeed who would now put it forward as a universal method of determining what is right. But the only alternative method suggested is a deduction of the right from the good produced in the way given above, and it is therefore our first task to consider whether it can achieve all that is claimed for it. If it cannot, we shall have obtained a negative answer to the question whether Ethics can deduce completely what is right in particular cases. This we may be able to use later in building up a positive solution of the difficulty.

Now the doctrine under discussion depends on two assumptions; (a) that the right action is always the action likely to produce the greatest good,² (b) that the total good³ likely⁴ to be produced by an action can be inferred from our knowledge of the different elements of value in this total taken separately—let us call them the “constituent goods”—by some process analogous to numerical addition. (The same would naturally apply to evil except that we should have to subtract it from the total instead of adding it. The diminution or averting of evil would have the same relevance for determining the Tightness of an act as the production of a corresponding good.) Here we shall confine ourselves to the second assumption. The answer may throw some light on the first also.

The theory with which we are now dealing starts from a knowledge of what is good in itself, not from a knowledge of universal laws dictating what we ought or ought not to do. According to it laws as to what we ought to do are only valid because and in so far as their observance furthers the greatest good;¹ they must be justified by the good they produce and broken in any case where they cease to be for the greatest good. This enables us to avoid the objections brought against the ethics of Kant and yet to claim knowledge that is in the true sense universal. We seem forced to admit that the laws as to what we ought to do are not truly universal because they are not valid in all particular cases, but we may still be able to say that a particular kind of effect is good in all cases without exception. This does not mean that we ought always to produce it, for it may have to be sacrificed to a greater good, but it is still good even if it is our duty not to produce it. If a particular kind of act, A, is right once, it does not follow that it will be right under different circumstances, but if A is once good in itself it seems to follow that it will always be good in itself whatever the circumstances. It is true that other considerations may make it wrong to produce A, but this does not alter A’s goodness. Similarly, if in any single case it be right to lie, there can be no universal law that lying is wrong, but there may still be a universal law that lying is evil. Though it is conceivable that it might in some exceptional cases be our duty to choose it as the lesser of two evils, it will still remain an evil even in those cases. So here is a field in which universal laws seem really to apply. It seems quite obvious that the pain incurred, e.g., in an operation, is always an evil, though it is sometimes right to inflict it in order to avert an evil which would be still greater. And it is still more obvious that something good may have to be sacrificed to a greater good and yet remain itself also a good; the fact that I ought to interrupt my study of philosophy to save a drowning man does not imply that the study of philosophy as such is not good, though in this particular case it had to be sacrificed to a more important good. (Perhaps the reader should be again reminded that “good” is used throughout to cover all kinds of value except value merely as a means, both in my statement of others’ theories and the elaboration of my own. “Good” is inclusive of but not synonymous with “moral good” in the ordinary sense of this term.)

Before we go any further, there are one or two ambiguities in our statement which it is necessary to clear up. I have spoken of deducing what is right, or what we ought¹ to do, but these phrases may either mean (a) the right act under the circumstances, (b) that act which under the circumstances known to us, we should, if we decide rationally, hold to be right. According to the view under discussion, whether an act is right in sense (a) will depend entirely...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Author’s Preface
• I. Introduction
• II. The Retributive Theory
• III. The Utility of Punishment (especially as a deterrent)
• IV. Punishment as a Moral Education
• V. Reward
• VI. The Bearing of our Moral Theory on Practice (or How we are to decide what is right)
• VII. Conclusion
• Index