Jan 14, 2009

LD mailbag: retribution and the ICC

Regarding the current resolution, a reader writes:
I'm really struggling with this topic, but I think I have an idea for a case. However, I'm afraid that I'm misunderstanding the topic or this idea isn't addressing it in the entirety that it needs to. The resolution has been reading to me that the question for the affirmative to answer is whether or not the US should (I'm defining ought as "moral rightness") submit itss citizens to the jurisdiction of an ICC. My idea is to have a value of cosmopolitan justice and criterion of retribution with the premise that justice is the highest value of any society, making it the highest value of the world/global society, and that the way for justice to be best achieved in this situation is for retribution to be fulfilled because retribution will give the just due to those who have harmed. My question is about the retribution part; I'm afraid I'm simplifying the debate too much because I'm seeing all of these other arguments that are much more complex. I see many other arguments about how submitting will support human rights, but is it wrong to interpret the topic as a response to injustice? Obviously, if there is a need for a court, then it's after the fact; the time for preserving rights is past, and now all that can be done is to punish those who have harmed. I interpret the debate to be that the US should submit if more justice will be achieved by doing so; one of the biggest benefits of an ICC is that there is an opportunity for retribution that wouldn't exist without it. The rest of my points are set up to prove that more justice is achieved for both US citizens and the rest of the world by submitting, so do you think that this could work? Or, like I said earlier, am I missing the point of the debate?
I think there's much to work with here.

1. Philosophically speaking, retributivism is perhaps the strongest justification of punishment, it a moral duty, and thus fulfilling the burden of "ought" in the resolution. Utilitarian theories (often based on deterrence) are a harder sell, since they require an empirical confirmation that the Court actually deters crime, and can be shown, absent side constraints, to justify horrific punishments to maximize deterrent value.

2. I don't think your doubts about retributivism are due to its weaknesses, but rather due to a misconception of the strength of rights-based affirmatives. It's much easier to show a duty to right a wrong than to show a positive obligation to prevent a wrong, especially in a world where national sovereignty is still alive and well and realpolitik holds sway.

3. One way retributivism might flow to the Neg is to argue that the ICC (and international jurisprudence, generally) prohibit the use of the death penalty. The worst atrocity crimes, including murder, merit at most life in prison without parole. If we have a moral duty to punish proportionally--almost always a key tenet of retributivist theory--and if mass murder requires the death penalty, then the U.S. should not submit to the jurisdiction of a court that will fail to carry out justice. (Even from a utilitarian standpoint, it could be argued that the ICC's inability to sentence criminals to death reduces its deterrent value to nil.) For a retributivist defense of the death penalty, start with Kant.

4. Varieties of retributivism (and the title of an anti-death-penalty retributivist piece.)

5. More on the different justifications for punishment, from the SEP.

Your thoughts and questions, as always, are appreciated.


LDn00b said...

This is a very good concept but as a neg I would turn it by giving a card about how the court restrains the US from acting unilaterally against crimes against humanity (since such actions could hurt civilians and be crimes themselves), and pointing out that the ICC doesn't have the death penalty, and no hypothetical court involving european countries could either.

This way, affirming would deny criminals against humanity the same fate as all thier victims-- which retributive justice would demand they recieve.

okiedebater said...

The idea of retribution that requires punishing in the same way a crime was committed is not generally accepted. Would a just society really advocating rapists? If someone killed more than one person, would they truly be punished equally since they can only die once?
In that way, it seems like you could argue that even though the international court doesn't (can't) have the death penalty, proportionality can still be upheld by life sentences and the like.
Overall, I prefer using either Proportionality (which would assume retributivism) or Hart's Theory. (See the Internet Encyclopedia of Philosophy's article on "Punishment")

Sexy Beast said...

Jim, how would Kant support the death penalty? (How can anyone for that matter... sorry, personal view.)

Wouldn't the maxim supported by the death penalty "On rare occasion, a government can provide death as a punishment", wouldn't that maxim fail the Categorical Imperative? Mainly the first prong, I don't believe that it can be universal... could you explain? Thanks.

Jim Anderson said...

From the IEP's page on punishment:

Kant invokes what he refers to as the “principle of equality” in his discussion of punishment. If this principle is obeyed, then “the pointer of the scale of justice is made to incline no more to the one side than the other” (104). If a wrongful act is committed, then the person who has committed it has upset the balance of the scale of justice. He has inflicted suffering on another, and therefore rendered himself deserving of suffering. So in order to balance the scale of justice, it is necessary to inflict the deserved suffering on him. But it is not permissible to just inflict any type of suffering. Kant states that the act that the person has performed “is to be regarded as perpetrated on himself” (104). This he refers to as the “principle of retaliation”. Perhaps the most straightforward application of this principle demands that murderers receive the penalty of death.

Sexy Beast said...

Cool, thanks.