Episode 256: The Right to Punish?

[00:00:00] Very Bad Wizards is a podcast with a philosopher, my dad, and psychologist Dave Pizarro, having an informal discussion about issues in science and ethics. Please note that the discussion contains bad words that I'm not allowed to say, and knowing my dad, some very inappropriate jokes.

[00:00:17] Bad people go to hell? I don't think so. You think that? Act that way. Does hell exist on earth? Yes. The Queen in Paris has spoken! Pay no attention to that man behind her! And with no more brains than you have, anybody can have a brain.

[00:00:29] You're a very bad man. I'm a very good man. Just a very bad wizard. Welcome to Very Bad Wizards, I'm Tamler Sommers from the University of Houston. Dave, the notorious candy mom. Former VBW guest Agnes Callard is back in the news again, this time the subject of a

[00:01:26] like, I don't know, 90,000 word New Yorker profile about her polycule with her ex-husband and former student now husband. What is it about this University of Chicago ancient philosopher that you liberal elites find so fascinating? You're the East Coast liberal elite, you tell me.

[00:01:48] Does she just have an amazing agent who is pitching New Yorker journalists stories about marriage? Like, I don't get it. I really don't. I don't have anything bad to say about Agnes Callard. I just don't understand the fascination. Oh my God, they've gotten to you too.

[00:02:04] I just don't, I don't get it. I skimmed as you did, skimmed that article. And I just agree with some tweet I saw that said, with some exception for us since Agnes Callard has been a guest, but the tweet said everything I've ever learned about Agnes Callard

[00:02:17] has been against my will. We cannot say that, to be fair. We invited her. That's why I said with exception. I still respect her like immunity to internet. Everybody's reacting to this and the cringiness of it. And she does not give a shit. That's the key.

[00:02:37] Like, that is the secret sauce, the cure, the cheat code, whatever. It is the way to just get the internet to move on almost right away. People who want to pile on and who really want to start some sort of thing, and they

[00:02:52] just are immediately diffused and like disempowered, perhaps like her husbands. Yeah, it is a superpower of sorts, both to get people to care about your weird drama and also to not give a shit when they respond negatively about it.

[00:03:09] It's like some combination of stoicism and I don't want to say narcissism, but I'm going to say it. It just washes off of her. Yeah, but I'm talking about like why do it?

[00:03:20] I would never ever want a New Yorker profile written up about my personal life like that. Oh yeah. Like is that fun? Yeah, I don't know. You know, she is, as she talks about on the spectrum. And she's just like, oh, this is cool.

[00:03:35] Probably I don't know how she was contacted by... That's what I don't understand. She's like an embedded journalist. Like she's like talking about having pita and hummus with her husband. Multiple days. Like the pita is like a big thing in the book, or at least... But you're right.

[00:03:50] Like I didn't even think of this, but I think at some point she's making pita in the evening and then the next day there's also something with that pita or new pita. What I never thought of until now is was she just staying at her house?

[00:04:04] Was the Rachel... I don't understand how these things work. Can you tell me how the inner machinations of elite liberal press work? For you to say that when I'm down here, I've been living in the South for essentially the last 20 years. Well, this wasn't our opening segment.

[00:04:20] All right. Yes. What is our opening segment? It's been a while, but we have come back to one of these idiotic neuroscience articles with just the perfect title for one of these. Maybe like the platonic form of the title for this kind of article, Blame the Brain,

[00:04:41] Not Bolsonaro for Brazil's Riots. It's by a political science professor, Matt Kvortrup. Okay. So you sent me this. I am still not convinced that this is a real person and that this is a real article. It's that crazy. It reads like it was written in 2003.

[00:05:04] And I just can't believe that anybody's making these arguments. Why do people take part in insurrections like the January 6th, 2021 attacks on the US Capitol, the storming of the presidential residence in Sri Lanka or January 2nd of Congress, the Supreme Court and the presidential palace in Brazil?

[00:05:19] Sometimes that question is answered by pointing to precipitating events, elections and their results, protests, the descended to anger or the speeches of powerful demagogues. On other occasions, we blame insurrections on prejudices or bigotries, racism, xenophobia, antisemitism, white nationalism.

[00:05:32] I suggest that we think about insurrections differently because they originate in our brains. It's just perfect idiocy. Like did we think the powerful demagogues didn't have brains? Sometimes when I talk about neuroscience like this kind of thing, I think to myself, you

[00:05:54] know, you're getting close to strawmanning what these people say. And then you read something like this and you're like, oh no, no subtlety. Just like you thought it was people's actions, but it's actually their brains. And yes, OK, from a rational point of view, rebellions seem pointless.

[00:06:16] A political scientist even coined the phrase the paradox of revolution. Enter neuroscience. Oh yeah. Enter neuroscience is a whole paragraph. It's its own paragraph. So the contrasting explanations as he sets it up are relative deprivation. Actually that's just it. The reason was poverty or quote, relative deprivation.

[00:06:38] It's either that or it's your brain. I love how he says that they used all these sophisticated mathematical models to try to explain rebellion and revolt. And they just couldn't do it until, hold on, enter neuroscience. Yeah, it was irrational.

[00:06:55] And like we thought all along that this must be rational. We were flummoxed. And then he proceeds to like kind of just talk about studies that are just like some of the things he says about the brain just sound like he doesn't know what he's talking about.

[00:07:12] Like when he's talking about the limbic system, he's talking about stuff that neuroscientists would never say now. And I feel like, like you said, for the last 10 years that they would. So let me read it a little bit more.

[00:07:24] Since the early 2000s, we have been able to look at what happens inside our heads when we think using fMRI scans, which measure changing blood flow to brain cells. It really, this is such early 2005.

[00:07:36] We can now see which parts of the brain get activated when we engage in various activities like shopping, thinking about sex and feeling remorse. This perspective has also entered into the realm of political analysis. Finally putting the science in political science.

[00:07:54] Oh my God, that is, I would be so mad if I were a political scientist. Finally. Like they deserve what they get too. Because all their bullshit models are equally just fraudulent. But I will say like, yes, I agree.

[00:08:08] I felt for the first time and probably the only time defensive. So you think, all right, is the upshot that like, because it's the brain that we therefore either can't control it or we have to do direct neural interventions of some sort?

[00:08:25] No, his conclusion is as banal as like anything anybody could say about what to do. So he says, this is at the end. Humans are the product of 8 million years of evolution. We have the capacity to use the powers with which we have been endowed, namely to learn

[00:08:40] by being attentive and through open deliberation. Human evolution hardwired us to process information and make progress through listening, Tamler, through listening. But when we engage in hate speech and angry rebellion, we revert to an evolutionarily primitive stage.

[00:08:55] Neuropolitics shows us a way out of the current polarized debate and into a better future. Yes. So wait, what are we supposed to do? Talk? We're just supposed to talk about policy. And that's the big insight that fMRIs gave us.

[00:09:08] No, but really, that's literally the argument of this column. Because of fMRI studies. Now, like, let's use a term I actually hate, steel man. This argument. Right. So the idea is that like some lizard brain region was activated when individuals, this

[00:09:32] now quoting, who are identified by psychological tests as radicals were exposed to hate speech statements or other intolerant assertions about other groups or minorities. And then he says that the fact that this ventral striatum was activated is remarkable because

[00:09:50] it's the oldest part of the brain and it's linked to a fight and flight center. And then this is the key quote, the most interesting part of this body of research. Generally, brains respond differently to politics than to policies.

[00:10:07] And the results show that when people think about politics as in the rough and tumble partisan struggle, the fight and flight amygdala is back to the amygdala. Gets activated. But when people are exposed to questions about policy, they use the more advanced parts of the brain.

[00:10:23] And fMRI studies dating as far back as 2009, scientists found that the dorsolateral frontal cortex lit up like you lit up in people exposed to arguments about economic policy. What is that, the boredom center? Like exactly two things.

[00:10:44] Those findings are showing the latter one that you just talked about is when people are asked about progressive tax policies, they're bored as shit. But if you show them, if you show Democrats Tucker Carlson clips, then they get mad. Yeah.

[00:10:58] Which you need to have brain research to really determine that, to discover that. The ventral striatum stuff is just like involved in reward. So basically saying when you show hateful people stuff that they like, the brain shows that they like it. Yeah.

[00:11:18] Like a racist person likes racist shit. The whole lizard brain thing, this guy, it can't be a serious. Yeah. I don't know. There are two ways that some of these neuroscience pieces are fundamentally misguided.

[00:11:34] One is that they do the thing like the headline does, where it's not Bolsonaro's fault. It's the brain's fault as if like Bolsonaro doesn't have a brain. That's just mind boggling to me.

[00:11:44] I find it to be actually like a deep mystery why intelligent people, I'm not saying this guy is, but I'm saying other intelligent people can sometimes fall for that. Right. Or lack of conflation in a way that is. I don't understand it.

[00:12:03] There's something missing in their otherwise intelligent, like cognitive world. But the second thing is they vastly oversimplify like what these regions and the various activations say. And this is the part that like, I think I was surprised to see in 2023 because you really

[00:12:24] don't find much of that anymore. You still find the people saying, oh, blame your brain. Don't blame. You know, when my daughter was little, I used to like poke her and then she'd say, stop it. And I'd say it wasn't me. It was my arm.

[00:12:38] Even she's smart enough to know that was a bullshit claim. Don't blame the insurrection on the brains. Blame it on the rocks that they were through. OK, here's a question. I don't know if this is even worth asking, but I'm trying to think if there is any way

[00:13:01] this kind of argument could be not ludicrous. So what if, you know, the part of our brain that we really don't have control over in terms of like, I sound stupid, like I'm just saying this makes me.

[00:13:19] But like there are certain things where our volition seems to be weak or non-existent. And let's say like I'm sure this isn't true, but let's just say behaviorally when we're low in volition, this part of the brain lights up.

[00:13:36] And let's say this part of the brain lights up when you start seeing like highly polarized culture war debate. Now, you might think that participating in that was voluntary because people seem to choose to do it all the time.

[00:13:53] But would this tell you that maybe it's less voluntary than you thought it was? You know, there's so much that I'd want to know about what is going on with a low volition conditions like is it something like, you know, when you're sleepwalking or when you

[00:14:14] have like alien hand syndrome and one hand is like going crazy. Right. Because the emotion stuff, it's just like, well, now it's just arguments that lead in the end to doubting that anything really is under volitional control.

[00:14:29] Like, you know, but I genuinely don't think that the brain can tell us what is under volitional control and what isn't. Right. So initially it would have just been because of correlations with behavioral studies, right? Yeah.

[00:14:46] Like I'm trying to figure out if like even in principle, like so the idea is initially they matched the lack of volition to these brain states and then were surprised, like he says, like it's remarkable that the ventral striatum was activated because that's

[00:15:04] usually associated with this less voluntary. You see what I'm saying? Like, is the structure here something that could possibly work? Because I think not, but I'm not sure I'm right about that. It's possible that in principle, something like this could.

[00:15:21] We're like, well, we thought you were deliberating, but in fact, your brain is acting like the brain of a hypnotized person, even though you appear to be acting sort of voluntarily. Yeah. Yeah. I mean, it reminds me of our conversation with Sam Harris that we titled

[00:15:36] tumors all the way down about that. And we had the case of the guy whose tumor was acting on his brain. But he didn't recognize that. And in that case, it is a little tricky because his actions appeared voluntary.

[00:15:47] So this kind of analysis to say like, is this person acting voluntarily or not? I really don't think that there's anything in the brain. I guess it depends if you mean involuntary in the sense that we should reduce our blame for these kinds of actions.

[00:16:01] Is he mounting a defense of, you know, being more lenient on the January 6th people? Yeah. But it's not. It's like, let's talk to them. But let's talk to them about, you know, like the Build Back Better plan.

[00:16:15] This argument that he ends with seems to undermine any of that voluntariness stuff because it's like, well, if you can just talk, if what you're saying is just like talk to these people, then they seem reasons responsive.

[00:16:27] So it wasn't like some reflex, some like lizard brain knee jerk reaction, or at least it's a kind of reaction that can be overridden by deliberation. And in that case, I would say, well, then you should have overridden it before you did

[00:16:40] it or something like that, you know? No, no. But to be clear, the blame stuff, I think, is its own question. I'm saying, like, could it actually get you to cure a bad habit or, you know, at a societal level, improve the state of discourse?

[00:16:58] Could, in principle, an fMRI set of studies, neuroscientific research actually help for that? Could it, in principle, tell us anything more than behavioral studies and self-report studies tell us? Like, could it add anything to that?

[00:17:15] You know, I have a ton of neuroscience colleagues who always get pissed off at me for all of the things that we say on this podcast, but I'm going to double down. Yeah. I genuinely don't think so.

[00:17:26] It's like neuromarketing, which was popular for a while, which was like, oh, look, when you show people fizzly Coke on the screen, their reward centers light up. And so, OK, that makes sense. But is that something that you couldn't have learned by just showing them that stuff

[00:17:44] and seeing if they want to drink it? Yeah. And they want to buy it. Yeah. And they want to buy it. There have to be examples that that make me wrong about this.

[00:17:53] But for the life of me, I don't know what it would mean to show that this particular part of the brain, unless you were talking some real low level shit, some real like brainstem stuff was going on that like made me slap you. It's not about responsibility.

[00:18:09] It's just about adding anything, adding something that would, let's say, instrumentally, whether it's getting people to buy Sprite or getting people to move beyond the polarized state of our political discussion. OK, here I'll play.

[00:18:30] In principle, I think that if you found and it would have to be at a much more detailed level of analysis than this guy is talking. But suppose that you found that there is a particular neurotransmitter working in a particular network that actually causes people to be hateful.

[00:18:46] So or that is heavily implicated. And you say everybody who is like deeply racist has like super increased activity in this network that is sensitive to these neurotransmitters. You could, I think, develop a drug that targeted that and maybe in the hopes of

[00:19:06] reducing that. This is all like just totally in principle. But I don't think if you're talking at the level of analysis of like what to do for like public service announcement stuff, it's such a different level of analysis. I think that it doesn't make that much sense.

[00:19:22] If it was something you started to consider as like a medical condition, design a drug. But if you could design a drug, why can't you just design a way of speaking or a way of interacting? I mean, it's essentially that's what therapy does.

[00:19:36] Right. So we know the whole serotonin hypothesis about depression has come under scrutiny. But suppose that that's true, that in some simplistic way, depression is a depletion of serotonin and we know that therapy works on it. So it must work by increasing serotonin levels.

[00:19:53] And also drugs work that way. It's just that I don't think we needed to learn that to know that therapy worked. Right. That was like a happenstance discovery after the fact. Right, right, right. Because it must work some way.

[00:20:08] There's got to be some kind of brain and body based way that it works because otherwise you're a Cartesian dualist. But there is something interesting, like when you said the thing about the drug, I was like, oh, yeah, that could help. And something in me.

[00:20:25] Yeah. Not the limbic system, but that other one, the good one, the good part, the good advanced recent. It's just devils and angels. Like which part of your brain is the devil on your shoulder? This is the Kant area, the Kantian area of my brain lit up.

[00:20:40] But like it does seem more plausible in the case of a drug than in the case of just adjusting social interaction. But yeah, am I suffering at that level then from the same delusion or is there a

[00:20:55] principled reason why it's more plausible in the case of a drug? I don't know. Yeah. I mean, there is this way in which a drug can bypass the normal inputs. Like, so suppose that you did something just really kind for me and that filled me

[00:21:10] with some warm, like gratitude and appreciation and love for you. Or I just took ecstasy and I was like that bypassed all of the normal ways in which that system would get activated. Or I take cocaine, right, and I just go straight to the reward system.

[00:21:27] I think that drugs and whatever other brain manipulating things that we can invent could just radically alter behavior. Right. And the way that neuroscience would help at that is you would study how you felt like all of this is fantasy at this level of technology that we had.

[00:21:44] But you would study your brain when I did something really nice for you. And then you would design a drug that could try to activate those same parts of the brain. Now, if you're then talking about behaviorally, well, I already know that we

[00:21:58] can make you feel good by giving you stuff because that's what led us to make this connection in the first place. And so I don't need the brain to tell me, in fact, it seems completely irrelevant.

[00:22:11] Do more of this kind of thing because it makes him feel happy. Because the whole reason that they even know that in the first place in the brain studies are because you report it. Right. And now we're into like some Soma territory where the government will

[00:22:23] eventually control us by putting certain drugs in our water. If it hasn't already. I mean, it made frogs gay. You don't mean French people, you mean. No, there was like a while back, like in some very conservative circles.

[00:22:41] I mean, it might have been an Alex Jones thing that like there was chemicals in the water that turned frogs gay. And then he thought this is why the gays are all of a sudden everywhere. They made crickets want to do drag shows for children.

[00:22:57] And so I'm glad you made me think a little bit more deeply about this. If a doctor said, Tamler, there's this new drug that we've discovered will make you argue less with your wife and have just a happier marriage, like nothing in your life will materially change.

[00:23:14] It's just that you won't argue with your wife anymore. Would you take it? You had me at new drug. That's because she's on the drug already. If she's I have she has been hitting me less. That's a different question altogether. I would definitely give it to my partner.

[00:23:32] You would slip it into like. So that way I'm not I'm not risking any any monkey poss scenario for myself. Yeah. You have a long history of slipping things in women's drinks too. That's terrible. No. Which part of your brain lit up when I said that?

[00:23:51] The Bill Cosby part. The Bill Cosby region. So we never even said what we're talking about. No. But we are talking about a paper from 1971 by Jeffrey Murphy called Marxism and Retribution. It has a healthy dollop of Kant and a healthy dollop of Marx.

[00:24:09] So something for both of us. And not at all, by the way, unrelated to the beginning. Yeah. No, exactly. I didn't want to make the connection. Nobody would understand what you're referring to. But I had the same thought. Exactly. All right. We'll be right back.

[00:24:24] All right. We'll be right back to talk about Marxism and retribution. This episode of Very Bad Wizards is brought to you again by BetterHelp Online Therapy. You know, if you've been listening to this podcast for any amount of time,

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[00:27:04] for all their support. We really appreciate it. And Tamler, man, there's just been a... Maybe it's Piranesi, the episode that brought out people's nice emotions, but we've gotten so many nice emails from people that I can't tell you how much they meant to me.

[00:27:21] Yeah, it does seem like maybe it brought out people's generosity of spirit. Yeah, I feel like that too. Modeled on Piranesi the character. And you know why? It's because we tickled that part of their brain. Yeah, exactly. The Piranesi system. The Piranesi module.

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[00:30:29] Tembler was saying it through much love too. Gritted teeth and love. It's love is a motherfucker. Yeah, it's a 16 episode run we're going to do of Paul and I talking about intro psych stuff. It was inspired by the fact that he has a book called Psych coming out.

[00:30:46] That's just intro psych stuff. And yeah, we're putting it out and we're giving our dear patrons early access to each episode. Yeah. Yeah, I think if you like Paul and chances are you do. Yeah. It's very different. A lot less cursing than this. Really?

[00:31:05] Is it supposed to be not explicit? It's not explicit. Yeah. Because one of the things I really wanted to do was just have a set of these episodes where I could say to my intro psych students, if you want to hear more about these topics, listen to this.

[00:31:18] And my hope is that other professors might care enough. So we really... Paul was actually insistent. And the first time we recorded, I said shit. And at the end he's like, you said shit. Sorry, Paul. Flee it out. All right. So I'm a little less worried about this.

[00:31:35] It's very different. You just running off together and leaving me behind. If anything, we would bring you to live together with us. Yeah, that's where this is heading. I can tell. And maybe, I don't know if you're listening to this Rachel Aviv, but I'm going to write

[00:31:51] about that. Maybe a whole double issue of the New Yorker. That story. Yeah, no, that's very exciting. And obviously Paul is a beloved guest of the pod. So I'm happy that you're doing that.

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[00:33:10] And 99.9% of the time we will answer that question in a monthly video that we release to you. And we really enjoy those. I'm excited to do another one of those as well.

[00:33:22] So and then like I said earlier, we also released the audio version of that to our to the $2 and up tier. Yeah. Thank you so much everybody. We're blown away. And everyone always says like I'm humbled by the amount of support.

[00:33:38] And it always sounds like just arrogant bullshit. But I kind of get it when I think about our patrons. You know. Yeah. Totally. It's really nice. All right. Let's get to our paper or article. I would argue could be could belong in our classic paper series.

[00:33:56] It's not maybe as well known as some of the other ones, but it is a classic. I mean, it's old enough to be a classic. I didn't know anything about it. I don't even know anything about the author, to be honest. Yeah. Jeffrey Murphy is his name.

[00:34:09] Definitely somebody who is known in philosophy of punishment circles. Professor at Arizona State. Done a lot of good stuff in this area. This is one of his earliest papers published in Philosophy of Public Affairs called Marxism and Retribution.

[00:34:28] I've taught this in my philosophy of punishment class for years, and I always really admired it, liked it, thought it was important in spite of the affinities with Kant that Murphy has. Yeah. Surprising. That's... I know.

[00:34:45] So just to briefly summarize what's going on in the paper, Murphy starts out offering a somewhat question begging Kantian critique of utilitarianism. And one thing that he notes is that everyone focuses on the problem that utilitarianism could maybe justify punishing the innocent.

[00:35:07] But Murphy says what needs to get more attention is that they also can't really justify punishing guilty people because utilitarians can't answer the question of what right we have to inflict suffering on people in order just to promote better consequences.

[00:35:27] So quoting Marx, he says, what right have you to punish me for the amelioration or intimidation of others? Because that is the justification that utilitarians often give for punishment is deterrence and maybe rehabilitation. Right. So according to Murphy, the problem, the fatal problem with utilitarianism is that

[00:35:47] I can't draw a distinction between what it would be good to do and what we have a right to do. And he says any theory that can't make sense of that distinction between what's good to do and what we have a right to do is morally degenerate.

[00:36:01] And actually, surprisingly to me anyway, he claims Marx as an ally when it comes to this view and quotes a couple of things. But then comes the twist. While Murphy believes that retributivism is the only morally defensible theory and

[00:36:17] principle, he argues that it's indefensible in practice in a capitalist society like our own. The reasons why? Well, first, the theory relies on false empirical assumptions about social conditions and human relations. And second, and this is really interesting, it treats certain concepts and gives

[00:36:39] analyses of certain concepts like rationality as necessary truths when in fact they reflect historical contingencies. In other words, the way we understand a concept like rationality is an artifact of living in a modern capitalist system and it's not the truth about what is rational and what isn't.

[00:36:59] So in practice, even though retributivism is a morally correct theory in principle, in practice it turns out to just offer a transcendental sanction for the status quo, a way to kind of justify the ruling class staying in power.

[00:37:17] And as a result, Murphy concludes that modern societies largely lack the right to punish people at all because utilitarianism is a dead end and retributivism for different reasons turns out to be a dead end.

[00:37:31] And so we don't have the right to punish people and would have to transform society in order to get that right. Now, I want to go through the arguments here in some depth, but I'll stop this

[00:37:42] summary just to ask you what you thought of the paper because obviously you're going to splooge all over the Kantianism in it. But you're also a libertarian Hayekian zealot. So the Marx can't have gone down too well. So which side wins? That's a good question.

[00:38:01] So I enjoyed the paper, although I do find that my objections lie mostly, as you predicted, on the Marxist arguments, which we'll get to. I enjoyed it because I was very surprised that there would be a Kantian Marxist. Like it's just weird.

[00:38:23] It's just like anybody who I've ever talked to, you know, and that's granted not a lot of people about stuff like this, is like Marxism and utilitarianism feel just feel like they belong together a bit more than than Kantianism.

[00:38:37] I don't think that I find that utilitarianism and Marxism are coherent as two. I just it's more the people who tend to be Marxist that I know. Vlad essentially. Yeah. But yeah, maybe you're right. Maybe. But I don't even think Marx. Does Marx talk that much about rights?

[00:39:00] That's what I that's what surprised me. I mean, there's a clear link between Kant and Hegel and then Hegel and Marx. Right. So in that sense, it makes sense that, you know, they would have that kind of German idealism connection.

[00:39:16] And even though Marx rejected the idealism of Hegel, like he's clearly buying into some part of that project. But yeah, I was surprised because I will get to this when we talk about the arguments in

[00:39:29] the paper. But I would have thought that a lot of this stuff about respecting individual rights, which has its roots in a kind of lock and that that that Marx would think that's also offering a transcendental state sanction for the status quo.

[00:39:49] You know what I mean? Like that he wouldn't consider it to be necessary for any morally defensible theory to respect individual rights because that's just liberal enlightenment bullshit to keep people from having to give up their property.

[00:40:04] Right. So, yeah, maybe my source of sort of the jarring experience comes from the rights talk being so associated with libertarianism, which is so opposite of Marxism. Yeah. Yeah. Yeah. And so. And I don't know, like I don't like the little Marx that I've read doesn't focus that

[00:40:25] much on Marx. So I'm like we almost have to take Murphy at his word that Marx has this concern. But also it doesn't really matter for the argument in the paper. No, it sort of motivates the like that quote motivates the argument.

[00:40:38] I got the sense that this quote is one from Marx that Murphy just probably puzzled Murphy at first. And that's why he worked out this, because I think the quote is interesting because it doesn't seem like Marx talked about this that much.

[00:40:52] Should we read the quote we're talking about? Sure. Yeah. From the point of view of abstract right, there is only one theory of punishment which recognizes human dignity in the abstract. And that theory, that is the theory of Kant, especially in the more rigid formula given to

[00:41:08] it by Hegel. Hegel says punishment is the right of the criminal. It is an act of his own will. This was the Hegelian theory of punishment says that the criminal wills his own punishment. The violation of right has been proclaimed by the criminal as his own right.

[00:41:24] His crime is a negation of right. And then Marx says, there's no doubt there's something specious in this formula. Inasmuch as Hegel, instead of looking upon the criminal as the mere object, the slave of justice, elevates him to the position of a free and self-determined being.

[00:41:40] Looking more closely, however, at the matter, we see that German idealism here, as in other instances, has but given a transcendental sanctions to the rules of existing society. It's a delusion to substitute for the individual with his real motives and multifarious social circumstances.

[00:41:58] The abstraction of free will did nothing about this quote actually makes me think that Marx was that into rights. I mean, he says from the point of view of abstract right. He sort of yeah. He sort of just then dismisses that. I think the German idealism with this.

[00:42:14] But Murphy has Kantian affinities. And so whether or not Marx did as well is not relevant, I don't think, to anything that follows. I honestly found myself maybe pushing against the Kantian view of punishment.

[00:42:29] You know, I'm confused about all this because I do have utilitarian leanings as well. So I don't really know what I believe. But this this at least gave me some good fodder for trying to work out in my mind what the right view of punishment might be.

[00:42:46] And this will get to the end. But like at the end, I really want to say, so wait, what do we do? Well, yeah, that is an issue that I also want to discuss when we get to the end of this

[00:42:55] paper. But let's just go through the argument a little bit. So the idea is, if you agree with the premise that any legitimate theory of punishment has to be able to make sense of how we can have a right to inflict suffering on another

[00:43:13] person. And what he says is what is needed in order to reconcile my undesired suffering of punishment at the hands of the state to reconcile that with my autonomy is a political theory which makes the state's decision to punish me in some sense my own decision.

[00:43:30] So this is the Hegel view to make sense of that. If I have willed my own punishment, consented to it, agreed to it, then even if at the time I happen not to desire it, it can be said that my autonomy and dignity remain

[00:43:44] intact intact and general will theories and social contract theories try to reconcile these two things. Autonomy with state authority, including like whether the state has a right to punish or not. So then he goes through these kinds of general will social contract theory.

[00:44:03] You know, there's I think a scary dystopian Hegel view where it's like you have your empirical self, which is like what you say you want and what you actually express desire for and then what you want according to reason. And that's your true will.

[00:44:22] Your true will is what reason dictates you should want. And your actual will, that's just, you know, something that we can discard when we want to know what you truly will or desire. Yeah. Like let's I like this section on social contract and how Kant dealt with it.

[00:44:42] Like I did find it fascinating because I just don't read this stuff. So the idea is by participating in society, you know that your desires are going to be in conflict with the desires of others.

[00:44:57] And you understand that in order for like you to even be able to fulfill some of these desires, these wants, whatever, that you're going to need to live in a society where other people would not infringe upon your rights.

[00:45:10] And in doing that, maybe one view is that you're tacitly consenting to a state that's allowed to punish. So your will is it's almost like the revealed preference of an economist. It says like, well, you just obviously you understand that in order for you

[00:45:29] to get any shit done, you can't have other people fucking up your shit. And so you must agree. Some deep part of you must be agreeing that punishment is a thing that the state should do for people who violate those rights.

[00:45:43] So when you yourself commit a crime, you're in violation of the thing that you believed in some deep sense. And you're implicitly willing then that you be punished for it. Exactly right. Even if you're saying no, no, no.

[00:45:59] Like, you know, according to these social contract people, of course you're going to say no, no, no at the time. Like who would want to be punished in the moment? But yeah.

[00:46:08] It's like when you're punishing a kid and you say you did this to your you made the choice to do this to ground yourself. It's not you're not saying like you actually want to be grounded for a month.

[00:46:19] You're saying you did a thing that you knew could lead to this and was in violation of the rules that you also agreed to and consented to. Yeah. This is the problem. And Murphy recognizes that it's a problem.

[00:46:32] He says, now this idea of treating people not as in fact they say they want to be treated, but rather in terms of how you think they would, if rational, will to be treated has obviously dangerous, indeed fascistic implications.

[00:46:47] Surely we want to avoid cramming indignities down the throats of people with the offhand observation that no matter how much they scream, they are rationally willing every bit of it. It would be particularly ironic for such arbitrary repression to come under the mask of respecting autonomy.

[00:47:03] And that's always been the most well, not the most offensive thing about this view, but that this idea that we're actually expanding your freedom. This is like what Isaiah Berlin in the positive and negative liberty paper that we

[00:47:15] discussed a long, long time ago was also worried about with Hegel and. Yeah. And actually I think Marx or Marxists. There is a quote from Kant that I really actually loved that that is is laying out his

[00:47:33] social contract view, where he says the problem of organizing a state, however hard it may seem, can be solved even for a race of devils if only they are intelligent. The problem is given a multiple of rational beings requiring universal laws for their

[00:47:46] preservation, but each of whom is secretly inclined to exempt himself from them to establish a constitution in such a way that although their private intentions conflict, they check each other with the result that their public conduct is the same as if they had no such intentions. Yeah.

[00:48:00] And I like it because it just it presents the problem nicely like this is a kind of a like a game theory problem. No, Kant would never have said it that way. Yeah. But in game theory operates with certain assumptions.

[00:48:17] And I'm glad you read that passage because that's exactly going that's going to be a central part of the critique. I think one of the more forceful parts of the critique is at using that conception of

[00:48:30] rationality of a bunch of self-interested devils trying to come up with a contract that will maximize each of their self-interest. You know. Yeah. Right. But then he says, but there's this other way that they try to justify it that, you

[00:48:46] know, isn't as obviously chilling and dystopian, which is the Rawlsian approach of imagining an original position where people under a veil of ignorance have to decide, you know, if you're an individual in there, you don't know anything about like whether you're

[00:49:03] going to be born in a bad neighborhood, good neighborhood, anything about like a lot of money, no money prone to violence, not prone to violence. You don't know any of that. What institution of punishment would you choose? And this is a retributive justification of punishment.

[00:49:19] They say you would choose retributive institutions over all the other institutions because it allows you to control your own fate in a way that utilitarianism or like a therapeutic approach to punishment does not. That's another way that's maybe not as crude. This was the Rawlsian.

[00:49:39] It's his tweak on the social contract stuff. Yeah. And it was. Yeah. I mean, I guess it's an improvement in a way, although I think one of the most interesting objections that Murphy raises is on exactly that.

[00:49:54] And I don't even know that it was that much of an improvement on what Kant was saying. I think he was just trying to offer some more legs on which to support that basic claim

[00:50:05] that he's like, no, no, it's almost like Rawls is saying, no, no, no, but really like, OK, if you don't just want to believe what Kant said, imagine this giving a method to

[00:50:15] people like he's like, no, no, I found an intuitive method where if you didn't, if you weren't prone to believing Kantian views like now you will because imagine this. But yes, again, transcendental sanction of the status quo, which is so.

[00:50:30] OK, so then the next part of the argument goes like this. Given that some combination of a Rawls Kant version of consent, you could have a in principle morally justified system of punishment, which utilitarianism can't provide

[00:50:46] because it doesn't make the crucial distinction between good to do and right to do. But here was an insight from Marx that not enough philosophers have internalized, have taken in, which is that theories can be formally correct, which means true in some

[00:51:05] possible world, but also be materially incorrect or materially inadequate because it which means not true in our actual world. And there's two ways that this can happen. Number one, that the theories and moral or political philosophy could presuppose certain empirical propositions about man and society.

[00:51:27] But those propositions turn out to be false. So then even if it was coherent or formally correct, it would be practically inapplicable. And then second, philosophical theories could put forth as a necessary truth that which is, in fact, merely an historically conditioned contingency.

[00:51:44] And the example he uses is kind of interesting. For example, Hobbes argued that all men are necessarily selfish and competitive. But it's possible that Hobbes was really doing nothing more than elevating to the status of a necessary truth, the contingent fact that people around him in a capitalistic

[00:52:00] society were, in fact, selfish and competitive. So those are the two ways you could have a theory that formally works, but in practice is completely inapplicable. This is what he will argue about retributivism. It actually runs afoul of both of those things. It makes false empirical assumptions.

[00:52:21] And it also takes a concept like rationality and gives an analysis of it that seems like it would be just the only way to understand rationality, but in fact is a product of living in a Western capitalist society to view rationality that way. Yeah.

[00:52:42] Which he never offers a defense of why he does that. But. Oh, I completely disagree. I find that to be like the most compelling part of it. Because you're convinced or because you think that he actually fleshed out why. Yeah. The latter. We'll go through it. Yeah.

[00:53:01] Then he goes into, I guess, Wilhelm Bonger, who is a Marxist criminologist from the early 20th century and, you know, definitely at the risk of oversimplifying, which he is willing to do just to get the argument out, is to posit in a Marxist way that

[00:53:25] criminality has two main sources. Number one, need and deprivation on the part of disadvantaged members of society. So if you're impoverished and you don't have access to money or opportunity, you will turn to crime. And number two, motives of greed and selfishness that are generated and reinforced in

[00:53:47] competitive capitalist economies. So this is definitely a big part of Marx's view that the economic structure of society actually shapes our personality, shapes our dispositions, desires, how we relate to one another. And capitalism brings out the most selfish part of us, the greediest part of us,

[00:54:10] the most individualistic parts of us and the most competitive parts of us. Those two things together are the sources of at least the lion's share of criminality. And he says, look, you might think this is just Marxist bullshit like you probably do.

[00:54:30] But consider the fact that the vast majority of people in prison are poor and, you know, he's not bringing race into it, although he does at a couple of points bring that into it. But certainly you could also add that element to this.

[00:54:49] The statistics around socioeconomic status and also race are overwhelmed. It's so overwhelmingly disproportionate for the poor and black people to be in prison that you would have to have some uber Charles Murray-ist view of the — let me put it a

[00:55:09] different way — so that you would have to really think that the same things that made them turn to criminality also made them — are the reasons they became impoverished. And that's just unsustainable.

[00:55:24] That's not a defensible view when you look at our, you know, the vast inequality in life and education and resources, you know, neighborhood to neighborhood. So he thinks because of that, this view, oversimplified as it is, the Bonger view, we might

[00:55:44] disagree on how plausible it is, how much of crime it can explain. But it certainly explains a lot of it. And I think that's all Murphy needs to then mount this attack on retributivism as a theory of punishment.

[00:55:58] And he qualified his critique earlier by saying, I think it's that this retributivism is largely inapplicable within these societies. And he put notes and says, I qualify my thesis by the word largely to show at this point my

[00:56:10] realization explored in more detail later that no single theory can account for all of criminal behavior. So he is trying to make like a largely claim. But it does lead me to to wonder what he thinks in the other cases he might possibly

[00:56:22] conceive of where it doesn't capture criminality. And and then if so, you know, what is it that makes those cases different? Well, I mean, like he does say like he gives an example of someone doing like tax fraud, like a rich person doing tax fraud.

[00:56:37] And he's like for a person. Right. But he gives a person like that. But it gives a retributive theory could work. But like. Right. But he says. But he. Well, it could be that rich people are committing just as much crime.

[00:56:48] But that doesn't undermine what I'm saying, because rich people committing crime also could have this cause that capitalism has made them commit the crime. Right. And so he wants to have like swallow like all of crime under this materialist

[00:57:04] Marxist view of what's causing the crime, which does lead me to believe like, OK, so. A rich person just decides to fuck over somebody. You're saying that this shouldn't be punished because this also has the cause that it

[00:57:18] was that capitalism gave rise to the conditions that made this rich, greedy capitalist screw over poor people. So we can't punish that person. It does feel like all that. Here's my general feeling. I feel like Murphy is is wanting to really defend

[00:57:37] a theory of determinism that undermines responsibility. And not. That's really what's doing the work here, that he thinks that that crime has its its causes in something that's outside of the will of the people.

[00:57:52] So I don't think so, actually, because when you look at the specific elements of the critique of retributivism, it's not about the fact that it was determined, but rather like, you know, if you're just a compatibilist or even a libertarian

[00:58:10] who acknowledges that we have influences on our behavior. But I also see what you're saying and especially something like motives of greed and selfishness and competitiveness like that could fire Bernie Madoff to do

[00:58:27] his Ponzi scheme just as much as it could could lead a poor person to crime because of, you know, bad education and need. Yeah. So here's what I so here here's where I wanted to ask you what you thought of this. So so let's say.

[00:58:46] Let's say that the conditions of capitalist society lead Bernie Madoff to do what he does just like they lead poor people. Now, I'm not saying you're accepting that like it could be. It could just be that like Murphy says, well, fuck it.

[00:58:59] I didn't mean the rich people. Let's just focus on the poor people, which I think would be fine. But let's say that that you do take seriously that capitalism might taint, taint the capitalists, the greedy ones and cause them to commit crime.

[00:59:11] It seems to me that I would maybe this is just because I want to. I would want to endorse some some kind of. Strawsonian account of why they should still like why my reactive attitudes should not be suspended for the rich people.

[00:59:31] But it's not about reactive attitudes like it's about inflicting punishment and suffering on people, you know, putting them so. But I think that they'd meet all the criteria for for for blameworthiness. So so here's where I'm tying like tying these together.

[00:59:47] It feels as if Bernie Madoff meets the criteria for blameworthiness on on say a strawsonian account. If he does and he was still influenced by capitalism to commit that crime, then why couldn't a poor people who a poor person who decides to commit a crime also meet those?

[01:00:04] Like, I feel like you would need something in addition to the economic analysis. To answer that, I think we need to go a little bit more into the details of the critique, the different ways, because I actually think retributive as aren't

[01:00:15] employing a strawsonian approach in their defense of the theory. So at the very least, right, like this critique would apply to the ways in which retributive as have justified their theory of punishment.

[01:00:27] So let me just go through two of the ways that he thinks it undermines the the specific details of the retributive theories. One of them is this idea that you alluded to earlier, that people just by living in a

[01:00:42] society consent to certain rules and those rules involve punishing people who infringe on other people's rights. And so just our staying in the society is implied consent to being punished if we break the law. And he says, look, people can't like them living.

[01:01:05] And especially if you are low on the socioeconomic status, but you don't even have to be that low on the socioeconomic scale. You can't move to another country. You can't move to a different society like you have no way of surviving if you did

[01:01:19] that. And and so you're just staying in the society doesn't imply consent to anything except that you're just trying to live. Yeah, there's no opt out like that. And with no opt out, then it seems like that argument.

[01:01:34] And I think that would be true whether it was a capitalist society or not. It's not like people have, you know, in different economic structures have been able to have full mobility. This episode of Very Bad Wizards is brought to you by the podcast Rethinking from the

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[01:02:36] Again, it's from the TED Audio Collective and it's available wherever you get your podcasts. Our thanks to the Rethinking podcast for sponsoring this episode of Very Bad Wizards. The second way in which retributivists sometimes justify, and here he's referring to

[01:02:53] like Herbert Morris, in this view that we all get benefits and burdens from living in a society. And one of the burdens that we all take on ourselves is to follow the rules and not try to take advantage of other people.

[01:03:08] So if we decide to commit a crime, take advantage of another person, then we are that there is a burden that everyone else has to fairly shoulder that we don't. And we get an extra benefit at the expense of somebody else.

[01:03:29] Punishment is taking away that benefit that we got from ourselves by not shouldering the burdens that everybody else has to. And here's where like inequality and what was true in 1971 is even more true today, that

[01:03:43] the idea that we're all roughly distributed with benefits and burdens is a complete joke. And so he says, consider an example. A man has been convicted of armed robbery on investigation. We learned that he is an impoverished black.

[01:04:02] Who's an impoverished black person, we'll say, whose whole life has been one of frustrating alienation from the prevailing socioeconomic structure. No job, no transportation. If he could get a job, substandard education for his children, terrible housing, inadequate health care for his whole family, condescending, tardy, inadequate welfare

[01:04:19] payments, harassment by the police, but no protection by them against the dangers in his community and near total exclusion from the political process. Learning all of this, would we still want to talk as many do of his suffering punishment under the rubric of paying a debt to society?

[01:04:35] Surely not. Debt for what? I do not think that all criminals can be so described, but I do think that this is a closer picture of the typical criminal than the picture that is presupposed in the

[01:04:47] retributive theory. The picture of an evil person who of his own free will intentionally acts against the just rules of society, which he knows as a rational man benefit everyone, including himself. That's the like gentleman's club view of society.

[01:05:05] And this is the thing that's just empirically false under capitalism, according to Murphy. By the way, I don't think that that's a fit. Like he's I think that he's being a little bit straw man here.

[01:05:18] And so he's giving like the real easy example of that, like everybody's going to agree like, oh, that poor guy doesn't deserve, you know. And then he has these like extraordinary strict conditions that he thinks retributivism has to adhere to.

[01:05:30] But retributivism is just requires that you be blameworthy. And then like that, you know, it could be that on like some content view of free will, like you have to meet all of those conditions. But it just retributivism doesn't require that those are the conditions under which

[01:05:48] you made all your decisions. And that's what I was getting at with my discussion earlier of compatibilism. It's not that I was saying the retributivists or idealists are compatibilists. I was just saying. Retributivism just requires some view of blameworthiness, but

[01:06:07] I think that's not true when it comes to punishment, like I like at least the specific theories that he is specifically targeting involve this notion of consent and maybe the more rationalist defenses of retributivism is what he's targeting.

[01:06:24] And you are like seem to be saying that a more sentimentalist defense of retributivism can survive this critique and maybe it can, but that's not what he is attacking. He is attacking the rationalist defenses which involve respecting autonomy and not inflicting suffering against somebody's will.

[01:06:47] And maybe that's what I'm just not that clear on as to like how these how these theories of punishment are related to theories of blame. Because it is interesting. This is attacking not it doesn't seem to be attacking the blameworthiness part.

[01:07:05] It seems to be attacking the right of the punisher part. Right. Exactly. But the right of the punisher seems to depend on some notion that the agent that committed the crime deserves to be punished. It's more than that, though.

[01:07:21] It's not. Well, the deserve is in the reason they deserve punishment is that they in some sense willed their own punishment. So so maybe then if he's saying retributivism that is motivated by some form of

[01:07:38] Kantian or Rawlsian notion cannot stand and he's limiting it to that, then it makes more sense because I feel like there are other versions of retributivism as a theory of punishment that could just be limited to just saying you the state has the right to

[01:07:55] punish anybody who deserves that punishment. And you don't need to have arrived at your judgment of dessert in a Kantian way. You can arrive at it in some other way. And then I feel like then then now I have a theory of retributivism that might escape Murphy's critique.

[01:08:13] I think you're right about that. And I think there you know he's writing this in 1971 and what's all the rage is more those Kantian like that Herbert Morris paper Persons and Punishment was that was what jumpstarted this new wave of retributive theories and philosophy.

[01:08:34] And so I think he is specifically targeting that and Rawls and and the Kant-Hegel view which I think he's right about. I think like what you're saying that retributivism as a whole defended from this more sentimentalist kind of approach might not.

[01:08:54] I haven't even actually thought about that at length but it might not be vulnerable to this kind of critique although it also might depending on how our reactive attitudes whether they're sensitive to certain things like deprivation. That's right. And that's what I'm not. That's yeah.

[01:09:15] That's what is just I think you're right that this is just historically like this is not a paper that could have tackled that. I do find though that Murphy's takedown of that like social contract view is that it's good and it just does seem absurd.

[01:09:32] It's talk about an idea that can be abused. What I'm what I'm fighting is that like okay that idea can definitely be abused that you know that treating. Oh no you really wanted it. So therefore like let me incarcerate you know a third of black men or whatever.

[01:09:48] Utilitarian justifications can be really abused. Like I think part of my resistance is at the end I don't have a theory that allows me to punish anybody. Yeah. And and what I'm really curious about is and this is maybe just a question about Marxism.

[01:10:04] Is the belief really that non-capitalist societies wouldn't have that crime. Like surely there's all kinds of societies that have existed ever. Have the crime rates really been you know controlling for the size of the society.

[01:10:19] But like have the crime rates don't people commit crimes of passion all the time. I mean they certainly don't like not that much stuff like we've been doing in the class actually for the first time some of the Foucault stuff on punishment.

[01:10:30] And you know what he says is that if you go back to you know 15 1600s like punishment was much more like it was much more violent and barbaric in turn and much more public but

[01:10:48] also much rarer and little things that people did like if you stole some carrots from some neighboring I don't know estate or whatever they would just let that go more often than not. They didn't have like this idea of criminalizing everything and setting everything down as

[01:11:07] some sort of rigid law and that that is kind of an invention of the Enlightenment period under the guise of humane being more humane in how you punish what it actually did it did it had the effect of two things.

[01:11:24] Number one punishing more widely so widening the scope of punishment and also distributing the agency of punishment because there you know every so often there would be riots after these public tortures and executions of people because they would have some sympathy.

[01:11:41] And so this and they knew exactly who to riot against it was the sovereign and it was the executioners. So you know like I think it actually is an open question to and even just a question

[01:11:55] of what we define as criminality is something that is pretty dependent on the kind of society that you live in. Yeah what I what I'm not sure of is like you know I totally agree with you about widening the scope of punishment.

[01:12:17] I guess what I really don't know is that a feature of like societies getting so large and complex or is it specifically a feature of capitalism? And I don't I guess I don't have the right comparison case like I don't know what is

[01:12:33] there any large society that is not capitalist that we could compare and see like did they not widen the scope of punishment because you know you're talking about like the brutality of punishment in like the 1600s.

[01:12:44] I'm currently reading a book that's about that era and a lot of it was punishment for you know treason against yeah against the sovereign right so like but like any small act could be taken as treacherous and they would just do these like drawn and quartered

[01:13:00] like violent gruesome things and like have the heads of criminals just like you know adorning the London Bridge. It's crazy so is the idea that like Soviet Russia was never like the appropriate comparison case like because yes because they were explicitly non-capitalist but was crime lower?

[01:13:19] Like is the I think that's like a red herring or just he's not even saying that under communism like retributive theory would be justified. He's not saying he's certainly not saying that it's like hybrid bastardization of it like it will be.

[01:13:33] But I'm asking the question genuinely like I'm not trying to get a gotcha. I'm just genuinely asking like is the idea that capitalism is at the root of all this crime like is it really the idea that non-capitalism of some sort would just have less crime because

[01:13:51] people wouldn't be tainted by this stuff and so I'm just trying to find any like any example of like a non-capitalist society that wouldn't be taken as like an exception or as like a. There are examples of that but at much smaller scales of society.

[01:14:04] So you want large scale and you know like almost modern industrial society but that's kind of one of those things that it is hard to disentangle. At the heart of it is my question about human nature like at the heart of it is like I'm

[01:14:17] wondering how you know is there just greed in human nature that's independent of capitalism and that's just a hard question to answer. Of course you're right and so actually this gets to I really want to talk about

[01:14:29] attack on the veil of ignorance and original position thing because it actually relates to what you just said. So this is what I find to be the most fascinating part of the critique.

[01:14:41] So he says the model of rational choices on page 238 of the piece found in social contract theory is egoistic right rational institutions are that that would be agreed to by calculating egoists or devils and Kant's terminology in the quote that you just read earlier in the discussion right.

[01:15:03] And you know the Rawls also thinks of people who are calculating egoists but they're under the veil of ignorance. And so Murphy asks why give egoism this special status such that it is built a priori into the analysis of the concept of rationality.

[01:15:21] Is this not simply to regard as necessary that which may only be contingently found in the society around us starting from such an analysis a certain result is inevitable namely a transcendental sanction for the status quo.

[01:15:35] Start with a bourgeois model of rationality and you will of course wind up defending a bourgeois theory of consent a bourgeois theory of justice and a bourgeois theory of punishment. And then what's interesting is that this bourgeois theory of punishment also operates.

[01:15:52] This is what a lot of critics of mass incarceration and a high police presence in a state. They will say this that really what that's doing is keeping the ruling class in power and and stopping people from revolting against it.

[01:16:11] And so you end up having this circle of a theory of rationality which results in a theory of punishment and that theory of punishment ends up reinforcing and preserving a condition that would produce that conception of rationality.

[01:16:28] And none of this is it's not like a cabal of Illuminati people doing this like this is just what naturally would arise. This is how if you live under capitalism you're going to just be prone to think well people

[01:16:41] are naturally greedy and people are naturally egoist and that's also how we should understand rationality. I mean we always make fun of economists and how they think of like how it's just so plainly

[01:16:51] irrational to turn down like a banana today when you could have three bananas in a week. Like you know I do think that rationality as a concept is infected with all these things

[01:17:04] that are purely contingent and not some kind of a priori way that we have to understand rationality and I really think this is an interesting part of the critique. I do also think that it undermines his right you know individual rights respecting necessary

[01:17:22] condition at the beginning as well. I don't see how it does. Yeah it is funny that way. Yeah. Yeah. I guess I found it less a rich analysis than you did because it's unclear to me what he

[01:17:33] could mean by rationality that's not like like what what is bourgeois rationality just he's taking like the Rawls position is saying that people are by nature selfish. No not by nature selfish it's the conception of rationality in the original position is

[01:17:51] I will choose the institutions of justice that will most benefit me but I don't get to know anything about my relative you know fortunes or the thing that's rational is the thing that would benefit me the most when I'm behind the veil of ignorance that's

[01:18:11] going to be the most rational kind of principles of justice rational institutions under which to we should live. I mean it is and there there is the appeal to self-interest that is you know that that

[01:18:25] is a pull there but I also think a pull is what is a fair society like I just I think that if you're concerned about distribution of resources in society for the sake of everyone

[01:18:37] else you might agree that not being tainted say by already being in the position of having like being rich would allow you to see that what truly is fair is is a just distribution

[01:18:52] no matter who you are that it doesn't seem that bourgeois to me and I don't know what the opposite of a theory of rationality would be there like what is the conception of rationality that he would defend like I don't get that.

[01:19:04] I think like you could imagine a conception of rationality that wants the best for everybody rather than just the best for yourself. But that's what I think but that's I guess what I'm saying like I would read Rawls's

[01:19:14] original position argument to be a kind of decision about what's best for everybody. But I don't think it's designed that way though it's supposed to be what's best for you and what's best for everybody only comes out if it does and the fact that you don't know where

[01:19:31] you're going to land in the society. But it's weird because it is used to motivate a true like a true position of like equality for everybody. Well no not it's it's is it more redistributary than like your preferred philosophers and

[01:19:51] political scientists like Hayek and for sure like a Nozick. Absolutely it is this is where I really like this it's it's it is a foundational attack on all of that you know whether it's Rawls or Nozick or whoever if you are a rationalist about this.

[01:20:10] Is what he's saying if you had a different conception of rationality then then maybe we could start an argument about whether or not you can ground punishment in rationality. Or yeah if there was some unambiguously intuitively true conception of rationality then we could

[01:20:31] use that to try to mount this defense of retributivism maybe you know it might still suffer from the other problem. This is the there's that we've already talked about but at least it would be a starting

[01:20:44] point but this just cuts it off right at the roots because you're taking this conception of rationality that he thinks emerges under capitalism and bears full fruit in the enlightenment like this is why it's the deepest part of the critique.

[01:21:02] It doesn't even get the kind of Kantian or Hegelian or Rawlsian defenses of retributivism off the ground like it can't even launch. Yeah I guess I'm just still not quite sure whether this it's necessary for his argument but like we can move on.

[01:21:22] I just wonder if like if there were a society where everybody had this conception of rationality say suppose that there was just like a bunch of bourgie people and they were all like yeah this is totally what rationality is.

[01:21:34] But that is our society like I think he thinks that is our society. No because he thinks that people aren't actually endorsing this kind of social contract sort of thing. No he thinks that of course we're going to think that this is the one true rationality

[01:21:51] because we are products of the capitalist culture that we grow up in but you know when you're being a philosopher this is not the only independently argued for or intuitively obvious conception of rationality as you know egoistic people living under certain

[01:22:11] conditions that we you know maybe a veil of ignorance or whatever. And so it doesn't matter if we all agree that that's the conception of rationality. Well that's that makes no difference like we that's what you would expect that we would embrace that conception of rationality.

[01:22:28] You know I guess I think that like at heart Rawls isn't saying that egoism is what rationality is. I thought Rawls was just saying like everybody has self-interest like we all do this is just

[01:22:39] a fact we all want to survive like that's just take that as a starting point. But he takes more than that like in the original position like he gives more to it's not just

[01:22:50] wanting to survive it's one it is purely you are out and when you're in the original position when you're in the original position you are out for yourself and that's it. Yeah it doesn't seem to me that that that's what his concept of rationality is though.

[01:23:04] I think he just thinks let's start with all you know is you you want to survive like you want to live you don't want to like live a shitty life like I don't think that's what rationality is I think it's just people have this self-interest.

[01:23:17] Now you could argue that that the argument is fails because it is itself not rational but to say that it's just his concept of rationality has this it's like baked in falsely from the start seems seems like odd it doesn't.

[01:23:36] I'm confused as to why I don't quite understand your objection to this because it's true that that's how Rawls determines what are the rational principles to adopt. What his self-interested like people would choose behind the veil of ignorance at least

[01:23:56] the early Rawls he might have like eased up on some of the like Kantian aspects of you know that relies on this being actually rational rather than just what we all agreed to.

[01:24:09] So it could be that later Rawls is more along the lines of what you're you know what you want to suggest but I think that Rawls doesn't come about when he's writing this paper and

[01:24:22] in any case this is I think a good critique of that Rawls the rationalist Rawls because he does he doesn't think oh this is just our shared conception of rationality and all

[01:24:33] we really want is to survive he's like no you are trying to do what's best for you in and that's the rational and whatever those things are what we you know what the rational principles of justice to adopt are.

[01:24:50] Yeah so okay well then I'll say I do agree that self-interest is not rationality like or at least it's not all of rationality that that's a mistake I get and I'm just doing a

[01:25:05] terrible job of communicating what I think is weird about Murphy's argument here but I here's my last stab at it there is the attack that you might make on whether or not people are

[01:25:16] fundamentally motivated by self-interest and then there is what would follow from that which is I think the the steps that Rawls wants to take you on that he believes are motivated by rational like good reasons. If we were fundamentally self-interested is that?

[01:25:32] No that that we might be yeah if we're if you start with the premise that we're all fundamentally self-interested then what would follow from that and it could be that that first step is just wrong it'll never get off the ground because that's just a dumb

[01:25:45] conception of how humans are. Or it's a contingent conception. Yeah or it could be that the steps after that are flawed rationality and so if if that's the critique that I'm not sure what like what the steps the rational steps would be but maybe

[01:26:02] it's just so focused on this critique of whether or not self-interest is the starting point. Yes that's exactly what it is that's the premise that he's attacking he's saying that is the conception of human nature and rationality but like you know at the at that

[01:26:20] first level that that is a historically contingent way of understanding that and I don't think he has a problem with the steps that come after that it is. Okay well that's why I started by saying like is it that the problem with egoism is part

[01:26:34] of human nature and you corrected me. Well because it's not just part of human nature it is all of it you know in this conception and that's that's the issue I mean look yeah and I what I also really like about this is

[01:26:49] this idea of the result dictating the premises because a lot of the even Rawls and certainly a lot of other social contract theories end up saying so more or less we're good you know

[01:27:04] like we're justified in doing like and having the rules that we have and even Rawls although less so than a lot of the others can justify a good amount of inequality as rational you know.

[01:27:19] And there's where I'm squarely like anti like there's where I'm like well you just look like it doesn't seem to have met even what Rawls would consider a just society like something is deeply wrong like there's something there's something rotten in Denmark.

[01:27:36] One thing that pulls me away from this paper a little bit is just and I think you sort of alluded to this early on where you say what does he want us to do and it's it's so disconnected

[01:27:51] this paper and this debate from like the facts about criminal justice and how justice is actually administered which has nothing to do with retributivism utilitarianism any of it like all that theorizing at the like it only I I've feeling this because I've been you know teaching

[01:28:12] this course like you know it's a borderline offensive to be talking about this like high somewhat technical theoretical debate when you know that just doesn't seem in any way connected to what's actually happening in our criminal justice system and like again way more so now even than

[01:28:35] at the time that he was writing but certainly also at the time that he's writing. Yeah I agree and somewhat ironically because you know the whole start of it was was like hey like these bullshit theories like don't have a they don't apply to the real world

[01:28:49] and then at the end I'm like so how does yours apply like you know like what I get like I get it I'm sympathetic to the argument yeah I just don't know how to apply.

[01:28:59] It's purely critical that this paper I think that's something also you know that I'm realizing even more it is not offering a positive alternative whether it's a conception of rationality or a way to restructure society so that you know retributivism could be applicable

[01:29:16] it's not it's not trying to do any of that it is just a purely negative critique of retributive the the rationalist retributive theories of the time. And you know what I kind of like I well not kind of I respect him for sticking to his

[01:29:31] uh retributivist guns because I do think that a lot of people when faced with arguments of a similar style like uh when they say like most people don't deserve what they're

[01:29:41] getting a lot of people do just fall back on well so then let's just justify in a utilitarian fashion like let's just do our best to bring about the best society and he just won't do it he ends like

[01:29:53] just like yeah maybe one day we'll have a society that where people can meet the conditions for being punished like that would be an awesome society where people really deserve it in the

[01:30:02] Hegelian way. Yeah no I mean like and he even somewhat hints at the idea that maybe you know if we reoriented society according to more Marxist uh principles there would not be that much crime

[01:30:17] to deal with in the first place but that's just a fine. But the people who are in prison would really deserve it. Yeah I guess exactly again this is like 71 so this is clockwork orange time

[01:30:29] this is you know the therapeutic approach the you know. Oh yeah let's talk about that like he really doesn't like that. Yeah yeah because it is a you are changing somebody's character against their own will uh without their consent and um and you can do it indefinitely

[01:30:47] you know it's like you wanted to slip a moral pill into among other pills into uh Nikki's strength. I'm a utilitarian when it comes to that yeah. Yeah uh there is a quote I do want to read his

[01:31:04] quote about uh he says so he's he's talking about the bonger paper and uh our book uh that he loves like he's all on the nuts of bonger until uh he gets to the end so he says what does bonger offer

[01:31:18] he suggests near the end of his book that in a properly designed society all criminality would be a problem quote for the physician rather than the judge end quote but this surely will not do the therapeutic state where prisons are called hospitals and jailers are called psychiatrists

[01:31:33] simply raises again all the old problems about the justification of coercion and its reconciliation with autonomy that we faced in worrying about punishment. So yeah like he's at least he's consistent about this like he's like that's just as undermining

[01:31:46] of agency as this other stuff like he's not like willing to go down the like your brain made you do it so therefore I'm gonna like. No no no yeah definitely not yeah yeah I like this paper also

[01:31:56] because it is just each step of the argument is very clear and he will bite bullets uh when he has to but um like I this is kind of a nice model of making an argument I do worry that it is

[01:32:14] arguing at this kind of epiphenomenal level that uh it's hard to see how this can um actually impact you know what's really behind uh the way we approach criminal punishment in in a

[01:32:32] in a capitalist society and what and probably other societies too it's like uh it feels like we're arguing about different things than is what's driving the approaches in in reality which like you said is kind of ironic because that's kind of his point too. Yeah do you think

[01:32:51] that if I think he died actually um but do you think that if recently I think Jeffrey yeah yeah do you think that he would say at the very least let's be more compassionate in our punishment

[01:33:06] like is that a step in the right direction like I mean the severity of punishment for all sorts of crimes for especially for the economically um like less fortunate is is terrible so I think

[01:33:18] anybody would argue that but do you think that like given the current state of affairs given that he thinks that that the structure of society is what turns people into criminals I don't think he would say let's just stop punishing and I don't think he would be willing

[01:33:31] to say let's punish on utilitarian grounds but but like if pressed for an actual prescription would it just be like let me just cut some of this shit out like cut some of the punishment

[01:33:42] I mean that's a good question I think this is part of the problem with putting all your chips into the content pot it's like if you're violating somebody's rights whether you violate them for

[01:33:53] two years or 15 years it's like it's not that it's not justified yeah it's just not justified either way and so it probably I guess you could say it's less of a violation of somebody's rights

[01:34:07] and so it's always good to do less of a violation of their rights than a greater violation but I yeah so I don't know I assume that he like any decent person would lower his actions he's like of course yeah what kind of stupid question is that

[01:34:27] I am you know I hadn't really thought though about how that argument against Rawls might it is interesting that he still sticks to his his retributive misconceptions of of rights when he's undermined the basis of the Rawlsian approach that might erode the

[01:34:46] basis of the whole approach yeah that's what I think like I think that that that's a section where he takes on the original position there like I think that also undermines the whole rights-based approach in the first place and so would undermine the formal correctness of

[01:35:04] retributivism not just the material correctness right it's a risky move on his part yeah he could be hoisted by his own yeah Kantian petard maybe we could maybe a title we'll see exactly yeah all right well glad I got to talk

[01:35:27] about this paper I'm glad you you seem to not be too opposed to it no I whatever I had problems with it was worth working through in fact just his outlining of the the juxtaposition of his

[01:35:43] Kantianism and his Marxism I learned I wonder if he just kind of rejected his Kantianism after a certain point that would be the sensible thing but you can't trust Kantians to be sensible that's for sure all right join us next time on Very Bad Wizards