Thursday, January 23, 2014

Getting clear about "Punishment": a response to Michael Davis

Introduction
While many an author may hope for positive feedback about a new book, there is something very special when such a hope comes true. I have been enormously proud of the strong endorsements and reviews of my book, Punishment, with more to come including a forthcoming special issue. Punishment is an award winning book launched in the Houses of Parliament. My central contribution of a new "unified theory of punishment" is included in the top 100 Big Ideas for the Future in British universities by Research Councils UK and acknowledged as an idea that will have "a profound effect on our future"-- you can hear me discuss the book in this interview with Robert Talisse at New Books in Philosophy here.

It came as a surprise when I discovered a disappointing review by Michael Davis in the online Notre Dame Philosophical Reviews--and my disappointment stems from his serious misreading of the book that left me in disbelief about a number of claims warranting a response.

My response aims to clarify what I see as the larger problems arising from Davis's review and not exhaustive of my disagreement with his comments about my book.

Problem 1
Davis's mistakes begin from his claims about the first pages of my book:
Brooks' lack of clarity begins with his explanation of what constitutes a theory of punishment. Drawing on H. L. A. Hart, Brooks says, in effect, that any theory of punishment consists of a) a definition of punishment, b) a general justifying aim of punishment, and c) a distribution of punishment (6). Since Brooks will later discuss "mixed theories", he must allow for more than one general justifying aim (say,both deterrence and condemnation). His "a" should therefore have been "at least one".
Davis is incorrect. My discussion of "mixed theories" includes a chapter on Rawls and Hart, a chapter on expressivism (and communicative theories) and my unified theory of punishment. I argue that Rawls and Hart do not endorse more than one general justifying aim, that expressivism generally collapses into retributivism and so does not endorse multiple aims either, and my unified theory has one--and only one--justifying aim, too. So my claim is consistent with what follows later contrary to Davis's claim.

Problem 2
Davis next criticises my comment in the "Retributivism" chapter where I say that "[perhaps] the most classic version of retributivism is found in the Code of Hammurabi's lex talionis, more commonly known as 'an eye for an eye and a tooth for a tooth'" (17). Davis says:
Brooks gives no source for this claim, seemingly taking it as the common wisdom. Yet, even a quick reading of the Code serves to disprove it. True, the Code (§196) does say, "If a [free] man put out the eye of another [free] man, his eye shall be put out" (with the same for "tooth", §200, and even "bone", §197). But the Code has many more provisions that do not seem to fit lex talionis at all."
This is an odd criticism of a passage taken out of context. Davis's presentation suggests my discussion of retributivism is focused on Hammurabi's Code and this is misleading. My discussion is in a section entitled "Retributivism is not vengeance" where I merely note one illustration of why some might think retributivism is akin to vengeance is well-known doctrines like "an eye for an eye" as found in the Code of Hammurabi--and, of course, Davis readily accepts such a comment is found in this Code and so I am correct to make this attribution.

My argument is that this view found in the Code is not a vindication of vengeance and so it is a mistake to think retributivism amounts to vengeance even if you held it accepted "an eye for an eye" doctrine. I mention Hammurabi's Code this one time and nowhere claim all retributivists do or should accept his views however conceived. So Davis's criticism takes my comments out of context and misses the point. This makes all the more curious his claim that this example is evidence for "suggesting careless editing as well as careless writing"--and much worse is to come.

Problem 3
Davis next argues my views on retribution are problematic--this is presented as "[t]he primary failing"--because I fail to discuss "legal retributivism, such as can be found in Herbert Morris's work or my own" where Davis cites himself--and not for the only time in his review. If Davis had read the notes to this chapter, he would see that I acknowledge the distinction between "moral retributivism" and "legal retributivism" and state clearly that "I will discuss legal retributivism in chapter 7" citing my earlier work--and also work by Alan Brudner, for which I have great fondness (220n12).

Problem 4
Davis then asserts that my book "certainly says nothing to suggest that retributivism has been the dominant theory of punishment for several decades now" citing Davis's own work (again) for support.

I make clear that retributivism is a dominant view of punishment. If Davis looked more closely at my chapter on retribution, he would have seen that I start(!) the chapter by saying that retributivism is "the most familiar...theory of punishment" with "a rich, venerable tradition" (15). I argue that not only is retribtivism "the best known" of penal theories; but, in fact, it exercises a "primary hold on us today" that is so powerful that all other theories of punishment "can be seen as a response to it" (34). There is more said in later chapters, too. Nonetheless, it is very curious that Davis could make such a claim with such certainty against so much evidence to the contrary.

Absence 1
One striking absence in Davis's critique of my chapter is no acknowledgement--nor rebuttal--of my criticisms of his earlier work on this subject-matter.

Problem 5
Davis offers further interpretive errors. One mistake is his claim that
Perhaps one reason Brooks overlooked this characteristic of legal retributivism is, oddly enough, that his own "unified theory" seems to require something much like wickedness in all crimes (a rights violation).
This statement is divorced from about everything I say in the book. I argue against Legal Moralism from my first chapter because I claim that punishment can only be justified in relation to crimes and not immorality. (I use evil and wickedness alternatively as synonyms to avoid repetition of language when critiquing Legal Moralism--Davis appears to overlook this and think I have some odd, even old fashioned, cariacture of retributivism in mind which I do not.) So my unified theory is deeply opposed to the view that wickedness, or immorality more broadly, can justify punishment and it is striking that Davis could miss a claim made at several points throughout the book.

My view does link punishment with the protection of rights understood as substantial freedoms. Davis's error seems to be in assuming that rights are moral in nature and not political. But this overlooks the Hegelian roots of my position that should be clear throughout--and not least because I am explicit about developing a unified theory inspired by earlier work examining theories of punishment by Hegel and British Idealists. (A more minor mistake by Davis is his example of driving on an expired license as a case my view of punishment cannot account for because it is not a substantial freedom, but this is not obvious to me and I don't see why such freedom of movement is clearly at odds with my theory.)

Problem 6
Davis criticises my analysis of punishment as "not clearly penal" citing an example of a violent psychopath (140-141). Davis says:
"The question, however, is not whether he should be locked up but whether he should be punished. Even if the aim of punishment is to restore or protect rights, it does not follow that every act of restoring or protecting rights is punishment."


This is another mistake. While Davis notes my following Hart in claiming that punishment is only justified for criminal violations, Davis overlooks the fact I endorse a view of punishment as a response to crime that may take the form of a fine and/or imprisonment (and sometimes both) in rejection of Feinberg's separation of penalties from punishment (as "hard treatment"). Perhaps Davis was unconvinced, but it remains striking he overlooked such a prevalent feature of my analysis--which would help him understand the claims I make about "punishment" (understood as a response to crime) throughout the book.

Problem 7
It may now be clear that Davis does not engage with most of my book(!). There is nothing said about my chapters on deterrence, rehabilitation, restorative justice, expressivism, etc. Davis says about part 3 of my book containing four chapters on capital punishment, juvenile offending, domestic violence and sex crimes is:
Brooks has a good deal to say about some of these other modes of enforcement, especially in Punishment's second half. That is one of the attractions of the book. My only objection to these digressions into general enforcement is that they are digressions, not anything relevant to punishment theory as such, even according to the unified theory.

This is striking because these chapters offer a wide range of philosophical material about issues such as whether retributivists should oppose capital punishment, whether age should matter in determining punishments and how this should be considered, how to best understand domestic violence as well as how best to respond and many other issues. These chapters demonstrate that different theories about punishment may have very different things to say not only in principle, but also in application with surprising results. I also make clear why the unified theory--my unique contribution to these debates-- is a better guide to how each of these very different areas should be addressed than alternatives.

Absence 2
While Davis finds nothing of importance in my part 3, it is striking that he is again silent on my criticisms about his earlier work on rape.

Problem 8
Now we turn to Davis's final comments:
Which brings me back to the conclusion of Punishment quoted at the beginning of this review: "If you care about justice, then you should care about punishment" (216). The book's index has no listing for "justice" and, in fact, there is no attempt anywhere in the book explicitly to connect the unified theory with justice. There are only many brief references to "desert", mostly in asides critical of (moral) retributivism.
Davis is incorrect yet again. I defend a particular view about justice--"the idea of the stakeholder society"--which is first presented in the chapter about my unified theory (see 146) and repeatedly highlight the central importance of stakeholding for any theory of punishment with further prominence in my chapter on youth offending. My view of stakeholding is an explicit development of Rawls's views on reciprocity--and I use the example of a property-owning democracy as an illustration of stakeholding (181)--and "one such view about justice" (216). So it is incorrect that the unified theory is nowhere connected with justice: it is and with the idea of the stakeholder society.

I discuss "justice" dozens of times throughout the book, including references to political and public justice, criminal justice and not least restorative justice. Furthermore, "desert" is discussed in dozens of places as well across a variety of contexts and not only in relation to "(moral) retributivism" which leaves me highly confused with why Davis makes such claims.

Conclusion
I am left puzzled by Davis's review that makes several problematic claims offered with notes primarily citing to his previous work and silent on all of my critical commentary about his own work. While no author can expect to convince every reader, it is disappointing to find so many problems in such a review and I hope this response makes clear why.

 

3 comments:

Alan White said...

Thom, your responses are right on. The fixture on Hammurabi's Code was an obvious and puzzling overreach, and it was certainly clear to me what your central concept of justice was. Your treatment of psycho- and sociopaths is pretty clear as distinguished from punishment for crime (in part because punishment can hardly be detached from the definition of crime, which Davis seems to ignore). Yours is an excellent book in breadth and depth of the subject, and it's unfortunate that this review doesn't tout its overwhelming virtues and instead strains at illusory gnats.

Thom Brooks said...

Many thanks for this, Alan. I have not found a colleague yet who agrees with his criticisms. At times I thought he must be discussing a different book because there is often a large gap between what he claims and what I actually say on several substantive points.

Alan White said...

Leiter asked for books we thought were influential. I mentioned yours, and Manuel Vargas' Building Better Beings as well. While writing my post I realized that your two books were quite compatible from two very different perspectives. So I said at least.