Charity and Desert

I appreciate very much Michael's help in thinking through these punishment-theory questions.  And while I certainly would not presume to "tutor[]" Michael on this matter (!), I will attempt a response:  In my exchanges with Rob (here and here), I have stated that moral desert should operate as a necessary justifying condition for, and also as a constraint on, punishment.  I have also said that moral desert authorizes (even if it does not require) proportionate, otherwise-permissible punishments by legitimate public authority. 

Michael and I agree:  No human being ought to be treated in a way that is inconsistent with the relevant moral norm, i.e., love (properly understood).  My point has only been that this moral norm does not preclude employing "moral desert" as a justification for, constraint upon, and authorization for punishment.  And, at least for now, I do not believe that employing "moral desert" in this way means that, in Rob's words, "the permissible scope of punishments is boundless."  (Though I certainly agree with Rob that, if a desert-based punishment theory *did* mean this, then we would want to be leery of that theory).

But (finally) getting to Michael's statement that "if . . . it would be contrary to the charity with which we are called to treat every human being ("Love another just as I have loved you") to punish a human being -- any human being -- in a certain way, then it follows that no human being deserves to be treated that way."  I admit it:  I do not know if this is right or not.  That is, I simply do not know whether or not saying that a person "deserves" X necessarily means that it would be permissible, for any actor, under any condition, to do X to that person.  In other words, is it nonsense to say, "we ought not to do to that person what he deserves, even though he deserves it?"  I genuinely don't know, but would very much appreciate help figuring out the answer.

Rick

UPDATE:  My colleague John Finnis writes:

"Desert" is such an opaque, wrapped-up term that I think Michael Perry's statement need not be denied. Things are clearer when one speaks of what is retributively just. The justification for punishment is, I'd say, the need to restore the just balance of relevant advantages and disadvantages between the criminal and the law-abiding, disrupted by the criminal's selfish preference for doing what he wants over doing what is legally and morally required of him by justice. When the offence is as severe a violation of the victim's rights and thus the law's constraints as in the kind of case you are discussing, the scale/depth/extent of the self-preference is such that a severe repression of the viciously unjust will is required and justified. That his will be wholly and permanently repressed -- and the offender permanently excluded from the advantages of social life -- by his death seems in such cases to be within the retributively warranted measure of retributive justice (which you could call his deserts). However, if causing that death with the precise intent to do so, and a fortiori bringing it about by torture, is the sort of thing nobody should ever be choosing to do to anyone, because incompatible with a rational love of human persons, then (although, as I just said, the result or impact on the offender considered just as impact would not exceed the retributive measure of justice and in that sense his deserts) it is true that no offender ought to be treated that way, and that truth can idiomatically be expressed by saying . . . that nobody deserves to be treated that way.

Notre Dame philospher and MOJ reader Chris Green writes:

It seems to me that Romans 12 suggests that there might be important limits on what punishments is permissible for a human being to impose, but which leave room for God's own justice, founded on genuine desert.  Romans 12:19: "Do not take revenge, my friends, but leave room for God's wrath, for it is written:  'It is mine to avenge; I will repay,' says the Lord."  People deserve terrible, painful punishments, but it is sometimes wrong for us to mete them out.

Thank you!