I mentioned in the introduction to the chapter on rights in general that we have two different ways of relating to others, the economic and the social. We have talked about the negative side of the economic relationship, that of not interfering with others' rights. We are not, however, going to treat the positive side, that of compensation, service, and so on, because that would get us deep into business ethics, and you can consult my book Ethics with Applications to Economic Life and Business if you want to explore that area.
Let us now pass on to the social relationship. First of all, what is necessary for a society to exist?
The difference between a set of people and a society is that in a society the people cooperate for a common goal.
This "common goal" is not just a goal that each of them happens to have; it is a goal of the group as a group: that purpose for which the people in the society are cooperating.
DEFINITION: A person cooperates with others when he performs actions expected by the group, and it is irrelevant whether he personally benefits from them or not.
This needs a little explaining, since it is the key to what society is.
What the definition means is that the cooperative act, looked at in itself, advances the goal of the group, not of the person who is acting. If it happens to benefit the person acting (or even advance his own purposes), this is purely accidental. Thus, a member of a car pool is expected to drive everyone to work on Mondays, whether he happens to like going around to all the others' houses and picking them up or not. If he enjoys doing it, fine; if he doesn't, he is still expected to do it.
But the definition does not mean that the member gets nothing out of being in the society; it only refers to the particular act which the member is expected to do in his cooperation with the other members toward the goal of the society. The member of the car pool, for instance, is aware that four days out of the five he gets picked up and driven to work; and this is better than driving himself every day.
Note that the cooperative act is expected by the group. That is, what is to be done, and often the conditions under which it is to be done are determined by the group and not the one who performs the action. Thus, our member above is assigned to drive on Monday, not any other day, even if he feels more like doing it on Tuesday; and he may be told that he is not to smoke his cigar in the car, that he is to pick up the others in a certain order, being there within five minutes of a certain time, and so forth. There may, of course, be more or fewer conditions put on his actions; but the point is that, insofar as the action is one of cooperation, he is subordinating his will to the will of the group as such.
This relationship, then, is very different from the economic one, whose negative side (rights) we saw in the preceding chapter. There, self-determination is what is emphasized, and others are looked on as possibly interfering with it; and if there is "cooperation," it involves (as we will see) the fact that the person who wants help gets it by giving the helper something to advance his (the helper's) self-set goals. There is no notion that "we are doing this together," where what is done is important, not whether it advances a person's individual goals.
For those brought up with the economic mentality--that of "independence" and "self-reliance"--this subordination of personal goals to others' wills and the task at hand may seem, if not positively evil, at least an aberration. To many, however, in the world and throughout history, it is precisely this way of behaving that is the "natural" one, and the economic way is the strange, almost inhuman way to act.
And in fact, cooperative behavior is necessary for human existence, and is the way we all begin life. "Feral children"--those brought up without any human contact--cannot act like human beings after a number of years of this deprivation. But children, of course, really have nothing to offer as compensation for caring for them, and so cannot enter into the economic relationship with their parents or caretakers. But without receiving care, they will die. But this implies that those who care for them must do so with an eye to the task in hand, not to how this act will further their own personal goals.
(It might be remarked here that the many instances of child mistreatment nowadays might very well be traced to an economic sort of attitude toward them on the part of parents: "Every child should be a wanted child"--with the notion of the joy that parenting is supposed to bring to the parent. But children, especially less-than-perfect ones, are very often not a joy, and become a "joy" only if one is not interested in one's own satisfaction or fulfillment.)
The other part of this is that children begin their lives in the "cooperative" mode of behavior, where they are expected to do things, not because they get something out of it, but because they are told to do it by their parents; it is only gradually that they learn about things like rights and independence. Being totally dependent at first, they experience their reality first as being part of a greater whole.
And the result is that people are by and large willing to cooperate with others. Few are so concerned with their own self-fulfillment that they will look to it at all times, and get no satisfaction whatever from what "the team" does and from their "contribution to the team effort."
[See also Modes, 6.3.2]
10.1.1. Motivating cooperation
Still, human beings are self-determining; and it is as unnatural to regard them in the ancient Chinese mode as pure parts of a society as it is to regard them as atoms that just bump into each other.
So even though people are in general predisposed to cooperate with others, they are also self-interested; and it is hard to predict when their generous social impulses will prevail over their own personal goals and self-fulfillment.
But a society has to be able to count on the cooperative behavior, or it can't exist. If the car pool could not predict that our member would in fact be there on Monday, then it wouldn't be worth it to have one; each other member would be waiting until the last moment for our friend to show up; and if he didn't, would have to drive himself to work, and probably be late.
Therefore, since the non-self-fulfilling acts must be predictable for a society to exist, a motivation must be added to insure cooperation.
The act in itself will not be beneficial to the one acting; but in order to make sure that it is done, then it obviously has to be made to his advantage. Then, if the general willingness to cooperate fails, and if the member is not motivated by the long-term advantage he has in the group if everyone cooperates, there is this added incentive to make it now advantageous to do the act.
DEFINITION: A sanction is punishment threatened for doing (or avoiding) some act, with the purpose of motivating the person to perform (or avoid) it.
10.1.1.1. Characteristics of a sanction
In order for a sanction to motivate behavior, it has to have three characteristics:
It must be sufficient: that is, the benefit from doing the act must outweigh the benefits from not doing it.
This means that the punishment for not doing the act is greater than the disadvantage in doing it. The point is that the person is objectively better off if he does the act. This characteristic is intended to motivate "the reasonable person," or a person who is looking to his advantage. You can't motivate with a threat a person who doesn't care what happens to him or who is so stupid that he doesn't see the connection between his act and the punishment. But that's all right; the sanction is just supposed to help people over those times when they'd be inclined to disobey, and it needs only to work "practically all" the time, not absolutely every time. A society can tolerate a certain amount of lack of obedience.
Secondly, it must be appropriate: that is, the sanction must attach to the expected behavior itself, not some circumstance connected with it.
What this means is that there are no "loopholes," where you can escape being punished by doing something other than what the group wants. For instance, to require cars to get inspection stickers and only to check whether they have them when cars are parked in front of City Hall will only motivate people not to park in front of City Hall, not to get their cars inspected.
Thirdly, it must be inevitable: that is, whenever the behavior is expected, the sanction must follow.
Otherwise, if a person knows he won't be punished this time, he won't be motivated to do the act; and to the extent that he knows that a good deal of the time he won't get caught and punished, to that extent he'll "play the odds" and it will be to his advantage not to obey--and thus the sanction becomes insufficient.
Of course, no sanction (except that of the moral obligation) ever fulfills these characteristics perfectly; and to the extent that it doesn't, to that extent the obligation is an imperfect one (because it is more or less advantageous to violate it).
[See also Modes, 6.3.3]
Sanctions that are excessive violate the right of self-determination of the individual member of society. But do individuals actually have rights against society? Or are they parts of society as cells are parts of a body, which are expendable for the good of the whole?
DEFINITION: Totalitarianism is the theory of society that says that individuals exist for the good of society, and have no rights except insofar as they fit into the society.
Individuals would have rights against each other, but not against the society. The society could decide what is "good for" the individuals and itself and force them to act accordingly; and this forcing would never be coercion, because the individual, on this theory of society, has no rights against the society.
Totalitarianism is a morally wrong theory of government, because it supposes that individuals are not self-determining.
It supposes that there is a meaning to "good for" someone which is different from that person's freely chosen goals, and which can be imposed on him, which makes freedom nonsense (since you are "free" only to obey or be a rebel and take the consequences).
Totalitarianism is a self-contradictory theory of society.
The reasons are (a) it removes from society any sufficient motivation for an individual to choose to belong to the society (because he will be choosing, perhaps, to be put down by the society if it benefits the society to do so), while (b) society can't function unless people choose to join and choose to cooperate.
DEFINITION: Utilitarianism is the ethical theory that says that the moral good is the greatest happiness for the greatest number of people.
Utilitarianism is basically a kind of totalitarian ethics; but it contradicts itself also, in more or less the same way that totalitarianism does. It supposes that an individual's rights can be violated if this brings about the greatest happiness for the greatest number; but making the greatest happiness of the greatest number the goal implies that the human beings who make up the society are in fact the goal. But if they are, then the society itself isn't; and if it isn't, then why is the individual expendable for "the greatest number"? Then if the "good" is this greatest happiness for the greatest number, how is this supposed to motivate me if I'm not one of this lucky majority? But then that makes "the good" doing what is in practice bad for me. Then how is it good for me to do it? The theory, when you think it through, is a mess.
No, the view of society that makes sense is that individuals are essentially self-determining, but have as a secondary but real aspect of themselves the cooperative relation with others. Neither aspect can be contradicted; neither yields to the other.
So human beings have all their rights (not freely given up when they enter the society); but, because they are really also "in it together" with others, they give tacit permission for society to give them orders and impose sanctions when they don't obey. The sanctions provide motivation to do those acts which are not in themselves advantageous. This is true even though, as we said at the end of the previous section, the sanctions themselves are never perfect as motivators.
10.1.2.1. Police states
But this is not a real problem in society, because, as I said, people are already predisposed to cooperate, and the sanction is supposed to provide extra motivation to help people over those difficult times when they are tempted to seek their personal interests at the expense of what the society wants. So even if the sanctions are not perfect, they do the job well enough, given a general attitude of cooperativeness.
In fact, when the laws have to be strictly enforced, and the sanctions have to be severe and swift, this is an indication that the government is trying to force something on the people that goes against their willingness to cooperate; and basically what that means is that the government is trying to force the people to do something that they think they have a right not to do.
A police state, then, in which the sole motivation for obeying the laws is the sanctions on them, is a sign that the people think that the laws are violating their rights.
The people, of course, might be mistaken; but when the laws have to have severe sanctions and the police have to keep constant vigilance to ensure that all infractions are caught, then this is the time when the law itself has to be looked at. Since people will by and large tend to obey without much in the way of sanction, their stubbornness in a given case is a sign that the command is in fact unjust.
This works not only in civil society, but in smaller societies such as businesses as well. If there is foot-dragging among the workers; if they have to be told every little thing to do; if they have to be watched to make sure that negligence or even sabotage does not ruin the product; then there may very well be something in the working conditions that violates some right they have. They certainly feel this way; and it is up to management to find out if the feeling is objectively based, and if it is to correct it, and if it is not, to explain the situation to the workers in such a way that they lose their misconception.
10.1.3. Punishment and its justice
Because of the first and third characteristics sanctions have, they must for practical purposes always be punishment. Imagine what it would take for a society to reward every instance of people parking in the desired locations; clearly, to give a sufficient one would bankrupt the society in an hour; and that is only one law out of thousands.
But does society have the right to punish people? Don't people have a right not to be harmed, and isn't punishment always the infliction of some sort of harm on the violator? After all, what punishment would it be if the person wasn't worse off for getting it?
So the problem with punishment is not just the problem with capital punishment. This is the extreme; but locking up a person deprives him of liberty (which is the second of the "inalienable rights" in the Declaration of Independence, after all--and if we are self-determining, we have a human right to freedom); imposing a fine takes a person's money away from him against his will (and so is the same as theft), and so on. Anything you do to a person to motivate him to obey will be something he has a right not to have done to him.
Once again, a version of the Double Effect solves the problem. The one who violated the expectations of society still has all his rights; but the society chooses its protection, not the violation of the criminal's rights. Those rights are in fact violated, but the violation is an unchosen side-effect of society's self-protective act.
Can society do this?
We saw, first of all, that society cannot exist unless it expects cooperative behavior. But it cannot expect cooperative behavior unless it motivates this behavior. But it cannot in practice motivate the behavior without threatening punishment. But if it threatens a punishment and cannot carry it out (and this is known by the potential offender), the threat is not a real threat, and will not motivate.
Therefore, if the society cannot carry out the threat of punishment, it cannot exist.
But since society's existence is necessary for human existence, people can't exist without some society. Therefore, if society can't carry out the threat of punishment (at least sometimes), people can't exist as human.
Hence, society has a right to carry out the threat of punishment. And therefore, it can choose to protect itself (and the human existence of its members) when it chooses to carry out the threat.
However, the violator has already done the damage to society by his violation. How can society's punishing him after the fact protect it from violation of its laws?
Punishment obviously does not protect the society from the violation that already occurred (It was the threat itself--which he ignored--that was supposed to do that). But if the violation is not punished, then the threat from this point on becomes meaningless--because it is now known that the threat will not be carried out.
Hence, in order to retain the threat as a meaningful threat for potential violators in the future, this violation must be punished. That is, not to punish this violation puts the threat and the existence of the laws and the society in jeopardy.
Therefore, the motivation for punishing the violator really doesn't have anything to do with "righting the wrong" he has done; it is that if the violation goes unpunished, the "sanctity of the law" (the idea that they carry punishment with them) is in danger.
With that in mind, let us apply the Double Effect.
(1) The act itself is morally neutral. Locking a person up, fining him, even sending an electrical current through him or hanging him is neutral as an act; all of these things are done in other circumstances in which there is no moral problem. It is the effect of the act on the violator that is the problem.
(2) There is a good effect. The law is known to be an effective law; you have proved that "you mean it," and the society can thus function.
(3) The harm done to the violator is not the means by which the good effect is achieved. If he should die of a heart attack before the sentence could be carried out, then the good effect would still be achieved.
(4) There is no desire to harm the violator (even for the sake of "getting even," no matter what terrible thing he has done.)
(5) The harm that comes to the violator must not be greater than the harm that could be predicted to come to the society and its members if the law is not enforced.
Notice that in this last point, the comparison is not between the harm he did and the harm that is to be done to him, but between the harm that is to be done to him and future potential harm to the society if the law is allowed to go unpunished.
In this sense, carrying out a sanction is not a matter of "justice" at all, in the sense "You did this, and in order to make things fair, we are going to do X to you." My contention is that that attitude makes it impossible to justify any sort of punishment, because it puts the punisher in the same position as the violator: he is one who is violating the rights of another person. Unless, of course, you want to say that the offender has lost his rights; but then which ones? But we discussed that earlier.
This is really a version of the "deterrence" theory of punishment. The theory is misinterpreted in that it is supposed by its detractors to be punishing the violator "as an example" of what will happen to other people who might be thinking of doing the same thing; and so the harm to him is taken to be the means by which others (who may not exist) are supposed to be frightened into obeying.
But that really isn't quite it. The idea is that not to do the harm that was threatened is in practice to encourage others to violate the law, because they then see that they will get away with the violations, and the law is meaningless as a law. So the harm is not a means toward frightening some hypothetical people; it is the only way to avoid telling people, "go ahead and do it."
It is the threat that deters, in other words, not the actual punishment. But the threat won't deter if people know that it's just words and won't be carried out. But then the society collapses.
[See also Modes, 6.3.3]
Obviously, if actions are to be expected of the members of a society, and this means that punishments are going to follow if the actions aren't performed, then the members have a right to know what these expected actions are, and what will happen to them if they don't do them.
That is, if you are in the car pool, and Jack Smith tells you "Put out that cigar," is he speaking for the group as a whole, and saying "Put out that cigar or else," or is he speaking only for himself, and saying, "I wish you would put out that cigar."? It can make a big difference, even in such an informal group as a car pool.
So in any society, there has to be some person or small group of people whom everyone recognizes as spokesmen for the society as such, so that when they tell you to do something, this is the expected behavior of the society, which will carry some sanction on it.
DEFINITION: Authority is the position in society (the status) which possesses the right to issue commands for the society and impose sanctions.
DEFINITION: Leadership is the trait of character a person has by which he can persuade others that they should do what he thinks is best.
DEFINITION: A command is a statement that something must be done or a sanction will follow.
DEFINITION: A law is a command that applies to many people.
So authority is the status in society which carries with it the title to the right to make laws and enforce them. In informal societies such as car pools, there isn't usually any defined position of authority in the society, but the function is performed by the leader.
Every society has either an authority or a leader, simply because it can't exist unless people know when the society is commanding them. The difficulty with societies that have only leaders is that, since the "commands" depend for their force on the persuasive powers of the leader (or how much fear he can strike into others' hearts), it isn't really clear what will happen if someone defies him--nor is it clear, sometimes, who he is, if there happens to be more than one forceful personality in the group. Even in societies with authority, it is sometimes the case that leaders will influence members to defy the authority, and chaos ensues.
Obviously, it is a good thing for the person in authority to be a leader; but it is not necessary. When he issues his commands, the members know that, just because they come from this office, they are what has to be obeyed. Further, when the commands are issued by an authority, they generally spell out what the sanction will be, which makes obedience easier for the members.
[See also Modes, 6.3.3]
10.1.5. Common goal and common good
It doesn't follow that a member of a society has to do everything that the authority tells him to, as if he had lost all control over every phase of his life just because he got into a society. For instance, if an authority tells a person to do something morally wrong, the member must disobey the "command." The command actually contradicts itself, because it is supposed to be directed to human beings, but it pretends to make them act as if they weren't human--and so it is a command only in its form, but not in its reality.
The limits of authority are the society's common goal and the common good of the members. "Commands" that have nothing to do with the common goal, or which go against the common good exceed the authority of the commander, and are commands in name only.
DEFINITION: The common goal of a society is the purpose for which the members cooperate as a group. This varies from society to society.
DEFINITION: The common good is the rights of the members which were not freely given up when joining the society.
Several things to note: First, there may be more than one common goal; in fact, ordinarily there are several. When this occurs, one goal is not really a means to the others. For instance, in business, providing a service to the consumer is not really a means to making profit; it is a coordinate end.
Second, the common goal may or may not be the purpose for which a person joins a society, or even the motive for which a person forms a society. When a person forms a society, the common goal is the end for which everyone cooperates--and why the others join in with the one who forms the group enters into the definition of the common goal. Thus, a businessman may hire others and form a firm because he wants to make profit for himself; but it does not follow that the sole reason for which the workers and he are cooperating is profit for him.
Third, it is the different common goals that distinguish the different societies. Each society has common goals; but each society has its own distinctive set of common goals.
Fourth, the common good is not really something positive in itself. It is presumed that members join the society to pursue the common goal together; and this is enough of a benefit for them. The "common good" simply prevents the society from doing them damage in pursuing its common goal.
That is, the "common good" means that the society must not pursue its goal, however laudable, at the expense of the humanity (the rights) of the members. Of course, if the society expects members to give up some of their alienable rights, then it can pursue its goal at the expense of the rights given up; but all other rights remain intact.
[See also Modes, 6.3.2 and Modes, 6.3.2]
10.2. Morality and society
Being in a society changes the relation an act has to the person acting. A person who joins a society gives the society tacit permission to command him in the area dealing with the common goal--which is another way of saying that in that area, what he does will not be determined by his own choices, but by the choices of those in authority.
Thus, it is contradictory for a member of society to disobey the commands of the authority (always supposing that they do not exceed the authority).
Therefore, a member has a moral obligation to obey legitimate commands of any society he is in.
That's the general obligation. But since the commands of the society are laws, which are issued to large numbers of people to fit general situations, it is sometimes possible to disobey the law without actually doing something morally wrong.
For instance, traffic lights are always to be obeyed; but their purpose is obviously to facilitate traffic. If you happen on a red light on some occasion where you can see that no one is coming and there is no danger of obstructing traffic, then it would not be morally wrong for you to run the light. In that case, what you would be doing would be consistent with the reason why the law was made, and simply recognizing the fact that all the exceptions that would in extraordinary circumstances facilitate traffic flow can't be put into the law. So you're still obeying the "spirit" of the law, even though you've violated the "letter."
The catch here, of course, is that you did violate the law; and it has a sanction attached to it. You weren't immoral in doing it, but if you get caught, you can't complain at being punished. That is, you won't get eternal frustration for violating a law of society in circumstances which make it consistent with the spirit of the law to do so; but you will receive the sanction society attaches to the law. You knew you were doing something that would be punished if discovered; and it is inconsistent with you to complain that now you are discovered, you are being punished.
10.2.1. Responsibility in a society
Once a person joins a society, then, there are certain acts he can't morally keep from doing (because he is commanded to do them, and can't get out of obeying by the "spirit/letter" distinction above). Hence, there is a sense in which he can't be said to be in a position to prevent the act; he is just a tool the society is using.
At this point, it would be a good idea to review section 4.4. and 4.4.1. on responsibility and responsibility and guilt. You are responsible for what you can control by your choices; and you are morally responsible if you are aware of the implications of your choice and if it would not be immoral to make the choice. What I have just been saying, then, about a member in the society when he obeys its commands is that he isn't responsible for what he does, since morally speaking he can't prevent the act.
In a society, the member is not morally responsible for the acts he does in obeying orders, except when these orders exceed the authority of the one who issues them.
The reason for this is that morally speaking, he has to obey, and thus can't morally prevent the act. Hence, he is not morally responsible for it. And since this is true of "the normal person" also, he is not legally responsible for it either. The act "belongs," both morally and legally, to the one who issued the command.
Of course, if the command is to do something morally wrong, or in general if it exceeds the authority of the commander, then the member either must not obey, or is not obliged to obey; in which case, his act of doing what he is told is now his responsibility (since he could morally have chosen not to do it). Thus, Adolph Eichmann could not say that because he was under orders, he was not morally or legally responsible for the murder of the Jews he killed. He is, of course, also responsible for not doing what he is told, because, as disobeying orders, he is taking over control of what the act is.
The authority is responsible for all the acts of the members which are the result of his commands. He is also responsible for acts that the members do "on their own" which he should have prevented by making commands against them, but did not.
Thus, the authority is responsible for more than his own acts. Since he is the one whose choice can prevent what the members do, he is responsible for everything they do that his choices could prevent. That's a lot to be responsible for; it's no wonder that executives (authorities) are highly paid.
Note that if the authority commands some morally wrong act and the member obeys, then both the authority and the member are fully responsible for the act: the authority, because he could have prevented it by not issuing the command, and the member, because he should not have obeyed an immoral command (and so "could" morally have prevented it). So more than one person can be morally (or legally) responsible for the same act. This is called joint responsibility.
Of course, if the member disobeys the immoral command, the authority is not responsible for what he does in disobedience; but he (the authority) is morally guilty of whatever morally wrong acts might have been done in obedience to the command.
But, as I said earlier, a person can only really be responsible for what actually happens; because an act that didn't happen (but could have) isn't something that can be attributed to a person. Nevertheless, since foreseen consequences enter a person's choice (whether they happen or not), they can make the choice moral or immoral, and thus can affect moral guilt.
If an unwise, but not immoral, command is issued, it must be obeyed, because in general the makeup of society is such that cooperative acts (the ones that have sanctions attached) are not for the benefit of the one who has to do them: and so, from his point of view, they will all seem unwise. Hence, not to obey them subverts the whole basis of the society.
The fact that a command is stupid or counter-productive does not absolve you from obeying it. The only time you can morally disobey a command (excepting the letter/spirit distinction above) is if it is immoral or exceeds the commander's authority.
But the member is not totally helpless when faced with an unwise command. If the member knows that the command is unwise, then he has an obligation to inform the authority of that fact, so that the authority can correct its command. If the authority commands the act after being informed, then the member must still obey.
If the member refuses to inform the authority, he then becomes jointly responsible with the authority for any unwise act done in obedience to the unwise command--because the member could have chosen to prevent it by informing the authority. If he informs the authority and the authority still issues the command, then he is no longer responsible for it.
In society, both the authority and the member are often responsible for the acts someone else does; and members are sometimes not (morally or legally) responsible for the acts they themselves do.
There is, however, more. Because a member, when recognizable by others as a member of the society, in fact represents that society to people outside it, then his actions become in a secondary but real sense the society acting toward the world outside it. The society can only act in the actions of its members; and hence the actions of the members, when known to be members, are also the acts of the society.
It follows from this that actions of the members which would be innocent if the member were acting purely as an individual, can be detrimental to the society; and in this case, the member is responsible for the harm done to the society.
For instance, a person who belongs to a business part of whose reputation is that of being dignified (because it serves an upper-class clientele), and who dresses sloppily or who acts coarsely at parties under circumstances when he is known to be an employee of the business, is responsible for any bad reputation the business acquires through him.
It was for this reason that Thomas More College reacted quite severely to a "Pimp and Prostitute" party the students held off campus, because it was known that they were Thomas More students; and the College was flooded with phone calls the next day asking what kind of students they were teaching in this supposedly Catholic institution. The students couldn't absolve themselves by saying that it was "none of the College's business" what they were doing off campus, since in fact they were bringing disgrace upon the institution.
It is well to keep this in mind. In the name of "taking responsibility for my own acts," many a person in society has ignored his real responsibility and pretended to be "responsible" for what in fact he has no real responsibility for.
We think of "justice" nowadays as related to rights; some action is "just" if it respects the rights of others. But it was not always this way. Historically, justice dealt with giving someone what he deserved or earned by his actions; thus, if a person violated a law, it was "just" to punish him; if he worked for a day, it was "just" to pay him a day's wage, and so on. We still use the term in this way; except that we think that a person has a "right" to his wages (and there are even those who would say that the criminal has a "right" to be punished--which certainly sounds strange).
DEFINITION: An action is just if it is suited to the reality of the person it affects.
I mentioned this in discussing the "cardinal virtues" in section 4.3.2. It is now time to go a little more deeply into this particular virtue, because it isn't simply connected with rights.
Justice's connection with rights is that if a person has a right, others' actions which respect that right are just actions; and any action which does not respect the right is unjust.
But justice, as I said, goes beyond respecting rights. The criminal, as I implied above, does not have a right, really, to be punished. It would be silly to say he can, if he wants, be punished, and no one may morally try to stop him from this (the definition of a right). Nevertheless, he was the one who violated the law; and since he chose to violate the law, he "asked for it," as it were (or he can be presumed, under legal responsibility, to have done so); and hence the punishment, which defends the society, is suited to the reality of the criminal. The punishment is therefore just.
On the other hand, excessive punishment is not just. If it does more than merely keep the law in force by providing a sufficient sanction, it violates the right of the criminal without fulfilling the fifth rule of the Double Effect; and so the violation of the right is chosen, and the act becomes unjust. (It can't be "justified" by the Double Effect.)
DEFINITION: Commutative justice is justice which suits the action to the self-determining nature of the person: his rights.
DEFINITION: Distributive justice is justice which suits the action to the cooperative nature of a person in society.
DEFINITION: Retributive justice is justice which suits the action of punishment to the nature of the violator of the law.
Thus, paying a person a given wage for services rendered, keeping promises, living up to contracts, and so on deal with commutative justice. Fundamentally, all economic relations are relations dealing with commutative justice; and in all of them rights are somehow involved.
But certain acts demanded by society have nothing to do with the rights of the members of society; and this follows from the nature of society itself. Society expects acts from those best suited to performing them for the common goal (whether these are self-fulfilling or not), and often does things for those who contribute least to the common goal (because they need the most help).
This is the area of distributive justice. The needy, for instance, may in some cases have nothing to contribute to civil society; yet they receive welfare benefits, because otherwise they are dehumanized. Society receives no compensation for this. Nor do those who are taxed to provide these benefits. Taxes are taken from them in proportion to their ability to pay (using the Principle of the Least Demand); and what do they get for their contribution to society? It may be, nothing. Is this just?
Yes. Why? Because it is suited to their position in society. They are the ones most capable of performing this cooperative act; it is an act that the society has to perform for its common goal; and therefore, it is suited to their reality as members of the society to make the contribution. Hence, it is just with distributive justice (though from the point of view of commutative justice--self-development--it seems unjust).
Retributive justice takes into account the criminal and what is to be done to him to preserve the law as a true command. It will then adjust the punishment, using the Principle of the Least Demand, to something that does the least damage to him while preserving the threat as a sufficient sanction.
Thus, one person might not get the same punishment as someone else who committed the same offense; and though the punishment is not equal for the same crime, in each case it is the minimum which preserves the law as a law. If it takes more to do this in some cases rather than others, the ones for whom this is true are not being treated unjustly, because no more than is necessary is being done to them. The punishment is just, because it is suited to their reality, not because it is the same as someone else's.
Beware of equating justice with "fairness" in the sense of "equality."
That is only one part of commutative justice, which is only one kind of justice. Justice is "fairness" or "equality" only if (a) all human beings are "equal" and (b) this is the only relevant aspect of their reality with respect to the acts of others. But both (a) and (b) are false, as I have stressed so often.
And so, many acts which are not fair are just.
[See also Modes, 6.3.4]
Summary of Chapter 10
Societies are different from collections of people in that the people in society cooperate for some common goal. Cooperation means performing actions that benefit and are expected by the group, and which are not in themselves beneficial for the agent. This type of acting is not unnatural, because we all received the benefit of uncompensated service when we were young, and so no human being can exist without being on the receiving end of cooperation; and therefore it is inconsistent with a human being never to cooperate with others (i.e. never to do something unless he himself benefits from the act).
But since the cooperative acts of the members have to be counted on, and they are not in themselves beneficial to the people who do them, this type of activity must be motivated by the society with a sanction: a threat of punishment attached to the act. Sanctions must be sufficient (outweigh disadvantages in obeying), appropriate (punish non-performance of precisely the act commanded), and inevitable (be applied at "practically every" infraction); otherwise, they will not motivate.
Totalitarianism, the theory that individuals are "cells" in the body which is the society (i.e. that the society is the true reality, and the individuals only parts) falsifies the nature of humans and their relation to society, and contradicts itself, since it depends on free (self-determining) cooperation. Utilitarianism, the moral theory that what is morally good (and obligatory) is the greatest good ("happiness") of the greatest number is a kind of totalitarian ethics; it also contradicts itself because it tries to motivate the individual to do what is not to his advantage, and why should he do what makes him worse off? Individuals, therefore, are primarily self-determining, but secondarily also have cooperative relations; neither is reducible to the other, and to deny either denies human nature.
Generally speaking, people will be disposed to cooperate; sanctions are really to help people over the times when they would prefer not to. But if laws must be strictly enforced because the people will not cooperate without them, this can be a sign that the people think the laws are unjust.
Punishment can actually be carried out, even though the act of violation has already occurred, using the Double Effect. The act is itself neutral; it has a bad effect on the violator. The act has a good effect of keeping the threat intact (and so preserving the society as a society) and not "sending a message" that it is all right to violate the law. The damage done to the violator is not what produces the preservation of the threat, because if by some accident he dies or escapes, the society has still shown it was serious. The society must not want harm to the violator; it must be an unfortunate consequence of preserving the threat. The harm done to the violator must be the least necessary to preserve the threat as a real threat.
Some status in the society (some position in it) must be set up so that the members may know what statements by members are commands of the society as such (carrying sanctions) and what are just wishes of other members. Authority is the status that has the right to issue and enforce commands (statements that something must be done or a sanction will follow). Leadership is the character trait that can persuade people to do what you want. It is good for authorities to be leaders, but not necessary. You must obey the authority just because he is the authority.
The common goal of the society is the purpose for which the people cooperate; this varies from society to society. The common good is negative: the preservation of the rights of the members which were not freely given up when they entered the society. "Commands" that have nothing to do with the common goal or go against the common good exceed the authority of the commander, and are not real commands. They need not or (if they command what is morally wrong) must not be obeyed.
A member has a moral obligation to obey legitimate commands of any society he is in. Sometimes a law may be disobeyed if you are still obeying the "spirit" of the law: i. e. the intent for which the law was passed in the first place. If, however, disobeying the "letter," you get caught, you must be willing to take the punishment.
Since a person may not morally disobey a legitimate law, even if it is foolish, then he is not morally responsible for what he does in obeying it. If the command is to do something morally wrong, or if it exceeds the authority of the lawgiver, then the member is morally responsible for his "obedience." He is always morally responsible for disobeying a law, since he could have prevented the act by obeying. The authority is responsible for all the acts of the members which result from his commands, as well as for acts that members do "on their own" which he should have prevented by issuing commands, but didn't. If the authority commands something morally wrong and the member obeys, they are jointly responsible for it; i.e. both are fully responsible. If a member disobeys, the authority is not responsible for what he does. Members are responsible for stupid commands when they did not provide information to the authority indicating that the command was stupid. If they provide the information and the authority issues the command anyway, they must obey, but are not responsible for what they do. A person in society, then, is often responsible for what other people do. Members also become responsible for bringing disgrace upon the society when they act in this way and are recognizable as members of the society.
Justice is not necessarily only connected with rights. It is the virtue of suiting one's action to the reality of the person acted on; and there are therefore three kinds of justice. Commutative justice respects the rights of others. Distributive justice respects the cooperative nature of members of a society and gives most to those who do least for the society (and need most to avoid dehumanization) and demands most (because it hurts them least) to those who receive least from the society. Retributive justice suits the punishment for a violation to the reality of the violator (making it the least possible consistent with preserving the threat). Justice, therefore, is not necessarily "fairness" in the sense of "equality."
Exercises and questions for discussion
1. What is the difference between a society and a community?
2. If you give a contribution to the Cincinnati Symphony Orchestra, you are certainly cooperating (in some sense) with the members of the Orchestra in promoting its common goal. Does that make you a member of the Orchestra? Why or why not?
3. Punishment, even capital punishment, is clearly discriminatory against Blacks, in the sense that there are proportionately many more Blacks in prison and on death row than whites. Does this mean that they are being unjustly treated? If not, what explains their overrepresentation?
4. If the person in authority is no better than I am (indeed may be demonstrably worse), why should I obey him?
5. If responsibility means having control, how can it be said that in a society I am sometimes responsible for someone else's actions, and sometimes not for my own? Don't I always and only have control over my own actions and no one else's?
6. If marijuana is no more harmful than alcohol, then the government has no right to tell me I can't smoke marijuana; and so I don't have to obey the law against smoking marijuana.Next