Over at the Mirror of Justice, Michael Perry responded to my recent post on Crime and Punishment. It turns out that I had missed the point he was getting at. He has now clarified that point. Putting the question again in the form I tried to address it earlier, the question would seem to be whether the following conditional is true: if there is a "sort" or type of act that "ought not" to be directed at someone as a form of punishment for a crime then that "sort" or type of act is not "deserved" as an act of punishment for that crime. It seems to me that, subject to clarifying a certain ambiguity in it, the answer to that question is yes, the conditional is true.

Why it is true? In my earlier post I distinguished a) the "sort" or type of act involved, b) the circumstances in which an instance of that "sort" or type of act may take place, and c) the goals for which an instance of that "sort" or type of act may take place. I argued that questions of "desert" bear upon a), and not b) or c). It is because a "sort" or type of act can meet a) for "desert", and yet instances of that type of act fail to meet b) or c) that some instance could be "deserved" and yet it "ought not" to be employed.

That analysis might suggest that the question of "ought" bears only upon b) and c). I did not mean to suggest that. While the question of "desert" bears upon a) and not b) or c), the question of "ought" bears, in different ways, upon a), b), and c). In particular with regard to a), there are some types of acts that "ought" never to be done, torture, rape, enslavement, and so on. The reason why they "ought" never to be done is that no person "deserves" to have them done to him or her. Such types of acts cannot fall under a description of "giving what is due to another", which is one way of describing the nature of justice. They are unjust types of acts.

So in the order of explanation, I would not say that the reason why such types of acts are not "deserved" is because they "ought not" to be done. It goes the other way around. I would say that the reason they "ought not to be done" is because they are not, and cannot be "sorts" or types of acts that can be "due" to anyone. Because there are at least three different ways of saying that an act "ought not" to be done, we want to inquire in any particular case why it ought not to be done. Because these are inappropriate circumstances? Because our goals are base? Or because it is an instance of a type of act that no one deserves to have done to him or her? "Deserve" and "ought" are not coextensive terms, since there appears to be only one way in which something might fail to be "deserved", namely, a), but many ways in which it may be something that we "ought not to do", namely failure of a), b), or c). And failure with regard to any one of these is sufficient for saying that it is something that we "ought not to do".

In addition, when it comes to punishment there is an interesting twist on the question of "ought". Some types of acts "ought" never to be done at all as punishment because no one can "deserve" them as they are simply unjust, torture, rape, and so on. They "ought not" to be done at all, whether as punishment or anything else. But it seems to me that there are some types of acts that "ought not" to be done to some, while they may be done to others. This occurs because of the need for a punishment to be proportionate to a crime. To use an example I used the other day, 10 years in prison is not a "due" type of punishment for stealing a loaf of bread. But it is likely a "due" type of punishment for murder, though some might argue about that. (And of course there might be more severe punishments that are also "due" that crime, say 20 years, or 30, and so on.) Thus, it may be the case that the same type of act of punishment is "due" one type of crime and not "due" another type of crime. Thus we can have a situation in which that type of punishment "ought not" to be used against some, and yet may be used against others. This possibility is the root of the ambiguity in Michael's question that I answered affirmatively above.

This latter possibility is not a judgment concerning b) or c). It is simply addressing the question of the specification of a type punishment as proportionate response to a type of crime, and thus bears upon a). So we have two types of acts of punishment that "ought not" to be done. 1) Those types that "ought not" to be done to anyone, and 2) those types that "ought not" to be done to some, that is, those not guilty of a crime for which such a type of punishment is "due", but may be done to others, that is, those guilty of a crime for which such a type of punishment is "due".

Michael asks, parenthetically, whether torture and the death penalty are such "sorts" or types that are not "deserved" if they are types of acts that "ought not" to be done. Given what I have just written, the question is unclear. If one maintains that they are of the "sort" that "ought not" to be done to anyone in the sense of 1), it is immediately evident that they are not "deserved" by anyone. But that is a fairly straightforward and in some ways uninteresting logical claim, since I have argued that in the sense of 1) the reason why they would be something that "ought not" to be done by anyone is because they are not "deserved" by anyone. So in the relevant sense that we are talking about here, we would typically judge that some "sort" of act "ought not" to be done because we have already judged that it is not the "sort" of act that is "deserved." In the sense at play here, it is difficult to know what other evidence we might have that the types of act "ought not" to be done, other than the fact that they are not types of acts that are "deserved." Given that account, we would not engage in the following dialogue: "No one 'deserves' them." "Why?" "Because no one 'ought' to do them." We would more likely engage in the following dialogue: "They 'ought not' to be done." "Why?" "Because no one 'deserves' them."

Now, if one maintains that they "ought not" to be done to anyone in the sense of 2), it is evident that that is because they are not "deserved" by some and are "deserved" by others. So an important question, it seems to me, is in what sense someone would claim that torture and the death penalty are the "sorts" of acts one "ought not" to do--in sense 1) or 2)? Against the background of the teaching of the Church, I think it is evident that in the case of torture the sense at play is 1). It is a type of act that no one "deserves" in any circumstance or for any reason. However, I argued in my earlier post that if we are operating against the background of the Church's teaching on the death penalty, then we have to recognize that the death penalty may well be "deserved" for certain crimes, even if it "ought not" to be employed. The reason why this state of affairs can obtain is that according to Church teaching the death penalty can be used in admittedly extreme circumstances, though those circumstances may not obtain in the advanced countries of the West, for example. It can be used in such circumstances, only because it passes the test of a) for a "sort" or type of punishment proportionate to a certain type of crime. So the "ought not" there has to do with b) and c), not a).

If it does not meet a) at all, there are no circumstances, however extreme, in which it can be used. So clearly, against the background of the Church's teaching, since there are circumstances in which it can be used, the death penalty must meet a) in some sense. But it cannot be a case of 1) above, that is, a "sort" or type of punishment that cannot be done to anyone. It must meet 2), a "sort" or type of punishment that is proportionate to some kinds of crimes, and not others. In that case, presuming the truth of the Church's teaching, one cannot say simply with regard to a) that the death penalty "ought not" to be done. One must say that with regard to a) the death penalty "ought not" to be used for types of crimes that do not "deserve" it in the sense of 2), but it may be used for types crimes that do "deserve" it in the sense of 2).

And of course, it may well be the case that even if it may be done in the sense of 2), presuming the truth of the Church's teaching it "ought not" to be used because of b) or c), as I argued in my earlier post.

John