by J. L. Speranza
-- for the Grice Club.
I'M NOT SURE HOW FLUENT "GRICEIAN OUTLOOKS" SOUND OR LOOKS -- but hey! "A Griceian outlook" sounds too authoritative, so bear with me!
In any case, Kramer wrote in "Caeteris Paribus Grice"
"I use “harmful” to mean doing legally
cognizable damage to the person or the public."
-- which got me into thinking. So I typed, ""Justification of Punishment" Grice" and got so many hits it bored me. So I wrote ""justification of punishment" harm harmful" and got this below, from the Stanford Encyclopaedia, online at
http://plato.stanford.edu/entries/punishment/
(My "Find" engine is so poor I had to copy and paste it to a Word document to find the collocation I was looking for. It is a passage after types of justification of punishment:
The author writes:
"a crime is (among other things) a
violation of the victim's rights, and
the harm [emphasis mine. JLS]
thus done is akin to
the kind of harm a punishment does."
Who is the author of this? Let me check. It's starting NOT to sound 'native English'! -- (I'm terrible at finding the difference!). It's Hugo Bedau.
Bedau goes on: "Deprivation has no covert or subjective reference; punishment is an objectively judged loss or burden imposed on a convicted offender."
In any case, it amused me to see 'the kind of harm', as it allows me to play, to no avail, most likely, with Kramer's definition:
"I use “harmful” to mean doing legally
cognizable damage to the person or the public."
For it would seem that one would like to introduce a subscript at this point, 'harmful-sub-l' as it were. Actually, 'Illegal' seems more reasonable. For it's an illegal harm that does legally cognizable damage, methinks?
Ah, for Sacco and Vanzetti!
Subscribe to:
Post Comments (Atom)
Posts
"Illegal" is most commonly used to describe violations of the criminal law. But there are other types of harm that are recognizable by the law - defamation, for example, or repudiation of a contract - which can be performed by speech acts. I was attempting to capture all of these in my formulation.
ReplyDeleteI do not accept crime as a violation of the victim's rights. Every crime with a victim is a tort against that victim, giving rise to a damage claim in civil court. But the plaintiff in the criminal prosecution is the state, because a crime is most importantly a breach of the perpetrator's duty to cooperate in the coordinated prisoners' dilemma game of civilization. Crime is punished by the state for the benefit of the state on account of the harm done to the state.
""Illegal" is most commonly used to describe violations of the criminal law."
ReplyDeleteNow you confuse me! The law criminal? :)
---- I imagine Aristotle, in Topics, "We do say 'criminal law', but we do not mean that the law is a criminal. Similarly, we say that cereal is healthy, meaning 'healthy' food". Or something.
Kramer: "Crime is punished by the state for the benefit of the state on account of the harm done to the state."
ReplyDeleteExcellent. This vis a vis his take against H. Bedau,
-- "a crime is [inter alia] a
violation of the victim's rights, and
the harm thus done is akin to
the kind of harm a punishment does."
Good. Because there was something too basic about Budau. Why, it reminded me of the Talion Law!
Harm -- akin? How can harm by akin? I think he means proportional, and even then!
Budau: "[t]he harm thus done is akin to
the kind of harm a punishment does."
In Kramer's 'rewrite':
"Crime is punished [by 'harm'] by the state for the benefit of the state on account of the harm done to the state."
---- But ...
OK. "Criminal" CAN be analogical. "That was a criminal action" being the primary use. "Criminal law" being a secondary use, as in "criminal prosecution" that Kramer also uses above.
But 'harm'?
Grice has a mimeo, "Can I have a pain in my tail?". I never guessed what he meant. I suppose he thinks that pain is NOT localised like that.
But what about 'harm'. I was thinking of harm as something physical. How can the state be harmed. While Budau is pretty basic, perhaps he is into primary uses rather than analogical ones?
Harm to the state? I get your drift. But it's a pretty abstract idea, no?
Note that only a person can be punished. Or a living being, say. Hardly a universal, or class, or abstract entity. "He punished the idea of cooperation". (cfr. the metaphorical, "He MURDERED the idea of cooperation").
But if harm is something MORE than physical (or even psychophysical), ... what does it expand to, 'harm to the state'? Or not.
When I say "state," I don't mean the political entity; I mean the community. Indeed, a typical criminal case is styled The People of the State of New York vs. D'alleged Perp.
ReplyDeleteThe "harm" done by a criminal is not necessarily physical. Disturbing the peace, loitering, vagrancy, spitting in the subway - all are crimes. The harm they do is to the quality of life in the community. No need for any individual to be victimized. And when an individual is victimized, it is nevertheless the harm to "law and order" - the fear that would exist if the crime were not punished - that is punished by the criminal courts. The victim is left to the civil courts to seek damages or the return of goods, etc. (although in the case of stolen property, the police usually just give it to the "plaintiff" without a civil trial, but that's really just a timesaver, not an aspect of criminal justice).
Thanks. Yes, that clarifies things! I wonder if you are not playing Humpty Dumpty and I Alice, "I didn't think you could use 'state' to mean that, but surely you Kant!".
ReplyDeleteI learned political philosophy from such a dogmatic -- he would distribute handouts with boring definitions that we had to memorise. And 'state' was such a bore to learn that I never knew I could just replace it by 'community', which I value!
---- I should consider your listing of harmful actions. Spitting on the floor in a subway is a good one!
I like your qualification, "harmful to the quality of life of the community". I wonder if that is not ALWAYS related in some way or other with physical damage. I mean: when you said, "not all harm is physical", I thought you would go straight to 'spiritual' damage. But no. You rightly point to the harm of the quality of life in the community -- no reference to the phenomenology of spirit in boring Hegelian philosophy of law!
I suppose the reason why spitting on the floor of a subway is ultimate a 'physical' considerations. It is unhealthy, sort of thing.
In any case, I go with your qualifications, of course. For community is short for 'set of individuals', in a way that Tarski would find platonistic, but there you go. And so the harm is to the community as a whole where the reference to particular individuals is, as you say, or as I rewrite now your saying, not 'rigid' (referring to a specific individual, less so the 'victim') but is rather indirect, attenuated, or even hypothetical.
I should expand on this. Since it relates to this point made by Grice elsewhere that UTTERER seems prior to ADDRESSEE in the sense (WoW:V) that meaning may exist if the U just THINKS there IS an addressee (I should revise his scenarios).
So in this case, an action is held 'harmful' ultimately vis a vis a 'dispositional' scenario. Not so much for the harm that the action inflicted on one victim but for the harm that NOT punishing (with some kind of harm to the perpetrator) the agent would result on "the quality of life of the community" which is condemning and punishing the crime.
Next is why Socrates HAD to drink hemlock. It seems to Budau's idea of the akin of harm is totally unakin here! What has the harm that a poisonous plant has in the stomach of a philosopher (so that it kills him) has to do with the philosopher having said this or that against the 'state'? Or something!
I tend to follow a psudo-confucianism advanced by an old law partner: small inaccuracy avoid long explanation. Unfortunately, that just isn't true at The Club.
ReplyDeleteThe "state" is the plaintiff in a criminal case, but as agent for the community it presumptively serves. That is not to say, however, that sometimes the state, as political entity is not the victim of a crime. Even then, however, the principle holds that the punishment flows not from the harm to the victim but from the harm to the community. That's because one of the things that the community cares about is the stability of the political entity it has created to, for example, secure the blessings of liberty to its members and their posterity.
Socrates, it seems to me, was punished for threatening the quality of life of the community by threatening the stability of the state. We can say that the people running the state were wrong and/or corrupt on that score, that their Red Queen approach to criticism did more harm to the community's quality of life than did Socrates's attack, but that critique goes to the truth of the minor premise (that Socrates's speaking was worse for the community than Socrates's silencing) than to the major premise (that threats to the state are threats to the community), which is the logical basis for the prosecution.
When I say that "harm" need not be physical, I am treating the creation of risk of physical harm, and the creation of fear of physical harm, as non-physical harm. Spitting on the subway hurts no one, although it does raise a health risk. But it is the creation of the risk, not the causing of actual disease, that is the crime.
I am working up to a long post on hate crimes that may tie into this. The idea I'm playing with is that an instance of prohibitable logical act A may "send a message," which, qua message, is performative of prohibitable logical act B.
Kramer: "I tend to follow a psudo-confucianism advanced by an old law partner: small inaccuracy avoid long explanation. Unfortunately, that just isn't true at The Club."
ReplyDelete-- To be qualified! Surely it DOES hold (true), and it's NEVER 'unfortunate'. What I suggest is that you drop the "if I may be inaccurate" every now OR then! :)
And thanks for keeping using 'major' vs. 'minor' premise. We have discussed this before, and we sort of agree that the major-minor distinction is usually otiose, but NOT here. For as Kramer rightly uses it, 'minor' means here, inter alia, the casuistic specific individual Socrates. And major premises deal with MAJOR stuff, instead.
ReplyDeleteI like Kramer's empahsis or conceptual stress on the 'problem' (if I may thus call it) of the 'finky' (?) disposition: 'the risk of health', the 'actual disease' (or 'harm') vis a vis 'spitting on the floor of a subway'. I wonder if subways are necessary, on the whole, though, but I should disgress. Or not!