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Is It Time for Private Punishment?

Summary:
When All Else Fails is about defensive actions, not punishment. If someone had justly and rightly shot the cops who murdered George Floyd, they would be trying to stop them from killing Floyd, not trying to punish them for their wrongful actions. In the same way, if I stop a would-be mugger, I’m trying to protect myself, not reform or punish the mugger, and not trying to change the culture at large.I largely stay silent on the issue of whether citizens may privately punish state officials and officers.However, let’s take a quick stab at this issue. In Injustice for All (one of those books about intersectionality, Jacob Levy?), Surprenant and I talk at great length about the hidden financial and other incentive structures which explain why the US criminal justice system is so

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When All Else Fails is about defensive actions, not punishment. If someone had justly and rightly shot the cops who murdered George Floyd, they would be trying to stop them from killing Floyd, not trying to punish them for their wrongful actions. In the same way, if I stop a would-be mugger, I’m trying to protect myself, not reform or punish the mugger, and not trying to change the culture at large.

I largely stay silent on the issue of whether citizens may privately punish state officials and officers.

However, let’s take a quick stab at this issue. In Injustice for All (one of those books about intersectionality, Jacob Levy?), Surprenant and I talk at great length about the hidden financial and other incentive structures which explain why the US criminal justice system is so unusually dysfunctional, abusive, harsh, and violent. Without here getting into the details, one of the findings is that police are rarely punished for excessive violence, including outright brutality, rape, and the like. Prosecutors and politicians are loath to cross them, and juries are loath to vote them guilty, even in cases worse than Floyd’s.

One of the major arguments for public punishment goes as follows:

The argument against vigilantism is familiar. John Locke argues each of us has the right to punish rights-violators in the state of nature. However, he claims, we are biased judges, too lenient on ourselves and too harsh on those who harm us. Private punishment thus creates various “inconveniences”, and our disagreements over private punishment could lead to conflict. Locke argues we should resolve this problem by instituting (as best we can) an impartial, public system of justice, which will correct those inconveniences and overcome our biases. Once that system is established, we should defer to it. We alienate our private right to punish.


FWIW, David Estlund uses a more detailed version of this argument in his own Democratic Reason. This isn’t simply some old thing Locke said that no one believes anymore. Instead, it’s probably the most widespread view among the population at large and still somewhat popular among philosophers, though no theory of punishment wins majority assent in philosophy.

This argument assumes, though, that the state is actually trying to punish people and doing so in a competent and reasonable way? What if–as with the case of the police–the state has largely declared and demonstrated that it won’t punish them, except under unusual circumstances? Many states have upheld doctrines of “qualified immunity” in which police officers are not held legally or civilly liable for their actions. Localities usually decline to punish excessive police brutality. Torts usually get thrown out. When officers are punished–say by losing their jobs (hardly a fitting punishment for murdering a civilian or blowing up a baby’s face)–police union usually succeed in getting them re-instated with back pay. Cops with a long history of racism and violence often just get moved elsewhere, much as the Catholic Church loved to shuffle around its child molesters.

In effect, the state has said, “We aren’t going to punish cops 99% of the time.” If not, then at the very least, this particular argument against private punishment fails. There may be others that succeed. But if this is your main reason to avoid private punishment, here it does not apply.

Jason Brennan
Jason Brennan (Ph.D., 2007, University of Arizona) is Robert J. and Elizabeth Flanagan Family Chair and Associate Professor of Strategy, Economics, Ethics, and Public Policy at the McDonough School of Business, and by courtesy, Associate Professor of Philosophy, at Georgetown University, and formerly Assistant Professor of Philosophy, Research, at Brown University. He specializes in political philosophy and applied ethics.

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