The Death of Retributive Justice

As I read it, his justification of punishment is on essentially utilitarian grounds. It is good for society as a deterrent, as a means of informing others as to what is permitted and what isn't, as a means of engendering a moral sense, by preventing private vengeance, and so on. I don't doubt that this is true. But he continues, nevermind whether punishment is just. The important question is, "is it useful?" But then, the question is also, "Is it justifiable?" (note that he carefully avoids the use of this word in discussing the analysis of any particular act of punishment, preferring words like "appropriate" or "reasonable".) And this seems to pose a problem, because, on what criteria are we supposed to determine what is and is not justifiable?

I was wrangling with this idea and the apparent contradiction of it all, until I realized that the first chapter provides the answer. Justice is the refuge of the decidophobe who wants easy answers to the impossible moral quandaries of life. Refusal to honestly assess the usefulness and justifiability of any particular punishment by referring to its cosmic Justice is just one way of avoiding having to choose and judge for oneself and of avoiding the moral responsibility that goes along with any such judgement.

The way I read it, so far the book has been as exhortation to constantly question the validity of one's own (and others') moral judgements. And the basic problem of autonomy is to avoid the tempting descent into nihilism which says, "if all moral judgements are questionable, then how can any of them be correct?" The (maybe unsatisfying) answer is that correctness, per se, is irrelevant, or even meaningless. But there is wrong and there is WRONG, and we must be willing to decide which actions fall into which category and to be willing to be held responsible for the effects of our judgements on others.

What do the Hayekians in the audience think about this reliance on reason?

In the Fatal Conceit (p. 68), Hayek says, "While it is true that traditional morals, etc are not rationally justifiable, this is also true of any possible moral code (...) so no argument about morals -- or science, or law, or language --can legitimately turn on the issue of justification." And this is where he introduces the quote I mentioned earlier, "if we stopped doing everything for which we do not know the reason, or for which we cannot provide a justification in the sense demanded, we would probably very soon be dead."

Is the essential humility of Kaufmann's argument (that we can only compare differences of degree and have the courage to be held responsible for our judgements and choices) enough to end this potential dispute?