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Is Our System of Laws and Punishments Failing Us?

This topic is designed to address the diversity of the moral beliefs and behaviors of various segments of society; reasons for this diversity; the moral issues of rule of law,  its legal principles, and its effectiveness in meeting goals; and, changes that might improve effectiveness.  It is intended to limit moral and practical issues concerning personal crimes/offenses carried out by individuals (and small ad hoc groups) committed in a neighborhood setting.  More complex commercial or political crimes, terrorism, etc. can be saved for another discussion.  According to the SEP definition of political philosophy it seems appropriate to include this topic under that area of philosophy.

Political philosophy begins with the question: what ought to be a person’s relationship to society? The subject seeks the application of ethical concepts to the social sphere and thus deals with the variety of forms of government and social existence that people could live in – and in so doing, it also provides a standard by which to analyze and judge existing institutions and relationships.(SEP)

Punishment Goals – Focus on Offenders

Most laws when passed/declared include provisions for punishment, usually a detention of some duration.  Some laws may include provisions for a fine as a milder penalty/punishment.  Other laws may provide for remuneration for recovery of victim’s losses.  Usually there are no “carrots” unless one suggests that avoidance of punishment represents a positive incentive.  A brief discussion of rule of law is provided at the end of this outline (See World Justice Project - WJP).

One can propose that the primary goals of punishment are deterrence or prevention.  Deterrence assumes that the threat of being apprehended and sentenced/fined poses a potential down-side risk that would deter the offender from executing the offensive act.  The “pain” experienced serving the punishment may also serve to deter future offenses by reinforcing the downside of the risks taken.  Recidivism statistics raise questions about the effectiveness of this strategy.

The idea of using an offender as a “poster child” to send messages to future potential offenders can deter them from committing the same or related terms.  This can include punishments that may be more severe than would normally be issued.  Celebrities or icons are especially vulnerable to this action because of the potential for greater press coverage.

Detention, as loss of sovereignty, serves as a punishment, but it also can serve to prevent a repeat offense, at least for the duration of the detention.  The detention also provides “contact time” that can be used to reshape the offenders morality.  Finnish experience has demonstrated efficacy of this approach.

Punishment Goals – Focus on Victims

These foregoing operational goals of punishment primarily focus on the offender and attempts to change the offenders moral attitude and behavior.  There are several other goals that focus more on the victim, and family survivors of the victims.  These basically can be characterized as retribution.  Terms used to signal retribution goals include:  eye-for-an-eye, accountability, closure, justice, et al.

Punishment System Effectiveness

One of the problems with measuring the effectiveness of the system is the classical statistical problem of basing the assessment on what is easiest to “objectively” measure.  Statistics on crimes, unsolved crimes, recidivism, punishments, offenders, prisoners, victims, and value of losses are easy to compile.  These mostly measure failures in terms of system goals.  Direct measurements such as crimes deterred, property loss and damage avoided, changes in intentional stance, et al are not measurable in absolute terms.  On the other hand changes (declines) in the failure statistics could be used to reflect year-to-year improvement in system performance.  Cross-sectional analyses, such as WJP’s international ranking of countries through a complex survey system uses features derived from system principles (goals).

Is the US’s world ranking of 19th with a score of 70% in rule of law effectiveness survey good or bad?  What does the US’s incarceration rate that is 7 times that of Europe/Japan/China say?  What does the similarity in of US’s victimization rate with that of the rest of the world say?  Victimless crimes?  Sentence lengths?  What does the US’s intentional homicide rate that is 4 times that of Europe/Japan/China say? What does the US’s recidivism rate of around 40% which has been improving and is comparable to many other developed countries say?  

Punishment Morality Issues

Does human need for security justify deterrence and detention punishment goals?  Does the failure to deter all crimes represent a failure on the part of society?  Failure to protect victim?  Failure to inform offender (See epistemological issues.)?  Role of human nature?  Free will/predestination controversy?

Is there a moral justification for punishment as retribution?  Is the demand for retribution an emotionally driven selfishness, such as vent for public, and possibly victim’s, anger at the injustice of the unlawful act.?  Is condemnation of genocide justified in the face of justified retribution or absence of rule of law processes (deterrence/detention)?

Is society justified in applying, or increasing, punishment to an individual offender as a sacrificial message to society in general to bolster the understanding that society, or at least a part of society, means business on this issue, even though the original goal of the law was deterrence.

Does Kant’s statement on instrumentalism (One should never use another to achieve one’s own ends.) apply to these last two points?

Does wrapping condemnations of certain acts (laws) and investing formal institutions with authority to punish violations make the punishments morally justifiable, when the punishments would normally be condemned if carried out by individuals?  Vigilantes?  Robin Hoods?  Does “greater good” always justify overriding competing moral principles?

Epistemological Issues – Morality Knowledge

What knowledge is needed?  How is moral (ought to be) knowledge acquired?  Is failure to educate or to instill moral criteria and behavior in potential offenders the root of the suggested failures of the system to protect victims from potential offenders?

Source institutions - experience, reason, family, culture – friends/peers/tribe/community/church/region, government - rule of law?

What can Kohlberg’s six-level, age-based morality model contribute to morality knowledge acquisition?

Level    Stage                          Social Orientation

    1        Preconventional      Punishment and obedience

    2                                              Instrumental exchange

    3        Conventional           Interpersonal conformity

    4                                             Law and order

    5        Postconventional    Prior rights and social contract

    6                                            Universal moral principles

What are the pitfalls in the discourse to justify the need for the law (source of normativity) to apply to everyone (universally)?

World Justice Project (WJP) 2014 – Rule of Law

“Rule of law” exists when laws are clear, fair and efficient, and when government officials are held accountable to the public under those laws, says the index. When a law is broken, justice must be timely, ethical and delivered by independent representatives of the community.  The WJP uses a working definition of the rule of law based on four universal principles:

1.  The government and its officials and agents, as well as individuals and private entities are accountable under the law.

2.  The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.

3.  The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

4.  Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflective makeup of the communities they serve.

Of the 99 countries surveyed and scored, the United States ranked 19th with a score of 70%.  The Scandinavian countries led the pack with scores in the mid- to high 80’s.  About 45% of the countries scored 50%, or lower.

Site -

WJP Rule of Law Index 2014 Report  –

Review/Summary -

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  • A former member
    A former member

    Interesting and well thinking people for engaged and fascinating discussion! Great meetup !

    1 · March 9, 2014

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