Punishment: Human Nature, Order, and Power

Ezekiel Vergara

Legal punishment has become a pervasive phenomenon in society, affecting millions of individuals worldwide and encompassing police practices, prison systems, and medical professionals. However, the practice of punishment often overshadows its theoretical goals. This paper attempts to highlight the theoretical aims of punishment through a genealogy of punishment as it relates to human nature. The theory of punishment demonstrates the primacy of order as tied to human nature. In addition to order, punishment is shown to have secondary aims, such as moral desert, rehabilitation, and revenge. These primary and secondary goals of punishment are then compared to the modern practice of legal punishment. Unsurprisingly, punishment in theory differs greatly from punishment in praxis. Instead of fulfilling its theoretical aims, punishment functions as a locus of power that strips agency from the offenders. In an attempt to ameliorate this theoretical-practical difference, various solutions are provided to make practical punishment more congruent with the adopted theory. In the analysis and critique of punishment, authors from various fields are cited, ranging from seminal works by Michel Foucault to modern works by William Connolly and Didier Fassin.

While the first instance of punishment remains unknown, punishment has permeated all aspects of life — in prisons, schools, and at homes. However, this paper will be limited only to “legal punishment,” or the activities of punishment that are conducted by states, courts, and police (1). To examine punishment, this paper will theoretically examine the institution and nature of punishment. The first section of the paper will seek to answer the question “what is punishment?” A brief genealogy of punishment and human nature will be presented. Proceeding from this analysis, the second portion of this pa- per will juxtapose the theoretical outline of punishment—as derived from human nature—with the actuality of modern punishment. Notably, it will be argued that the presence of asymmetric power relations distinguishes theoretical punishment from actual punishment. In response to the discrepancy between theoretical and practical punishment, a possible improvement to punishment will be proposed: al- lowing offenders to propose their own punishment. Finally, the paper will consider challenges to this proposal. In order to present a thorough and convincing analysis, each section of this paper will refer to a variety of authors, mainly political theorists and jurisprudential scholars, while also referencing some empirical data. Likewise, this paper will operate within the paradigm of the current debate on punishment and focus on punishment in the United States (2).

I. Human Nature and Punishment Punishment is related to human nature; it seems impossible to divorce the two. Through a genealogy of punishment, it will be shown that these two concepts are heavily intertwined, with the human desire for order serving as the impetus for punishment. “Punishment,” then, refers to “an attempt to reestablish order through sanction on the offender, in accordance with human nature.” A few clarifying statements should be made before this relation is demonstrated via genealogy and analysis. First, the term “human nature” is an amorphous concept. Among theorists, there is debate on whether a unique “human nature” exists (3). Moreover, even if a human nature does exist, there is no consensus on the nature of this concept (4). Hence, this paper will present a thorough analysis of human nature that draws upon various authors. However, it is recognized that other conceptions of human nature may lead to the same conception of punishment. Second, the fact that punishment is related to human nature does not mean that human nature involves punishing. This paper does not preclude the hypothesis that human nature itself desires punishment, yet the link between punishment and human nature supported by this paper is more derivative, in that punishment arises from the human want of order (5). Presently, this paper will provide a genealogy of punishment that begins with human inequality (6). This inequality, which is natural to man, leads to conflict over similar wants. Namely, some individuals are better suited to achieve their wants, while others are less capable. When two or more individuals want a good that cannot be divided, the most capable is able to acquire the good. Oftentimes, this zero-sum game leads to conflict as the weaker party seeks retribution (7). In the face of this conflict, man desires order, which is the primary impetus for punishment. Because of this conflict, man seeks to establish a type of order, an order that can allow individuals to pursue their ends without the threat of violence (8). Ultimately, this order is established by a superior individual, family, tribe, or group that exerts control and establishes rules in a certain region. Originally, these rules are simply based on custom—or the norms of fair expectations in common-life. Due to their historical underpinnings, these customs are obeyed by the people (9). Over time, though, customs become binding in a certain area or jurisdiction (10). Customs, founded on fair expectations, seek to apply an objective, ordered standard of conduct to human behavior. However, because customs are not universally followed, a mechanism is needed to maintain order and ensure adherence to these expectations. Primarily, to increase the level of norm adherence, sanctions serve to increase the costs of deviance. Eventually, with the creation of the state and morality, punishment began to be exercised by centralized legitimate authorities that monopolize violence (11). Important to the monopolization of violence is the codification of norms or general maxims, allowing the state to determine when punishments, such as monetary and physical punishments, should be applied. For instance, in the early United States, many crimes were accompanied by a fine and those convicted suffered harms from forced labor to capital punishment. Thus, a legal system came into existence. As punishment evolves over time with the expansion of the state, the economy also plays an important role related to order-based punishment. Namely, monetary payment can be used as a sanction on offenders, as a way to reestablish order (12). The creditor-debtor relationship serves as the basis for punishment in the Nietzschean account (13). The Nietzschean account highlights the relationality and inequalities of punishment. Namely, the asymmetry of Nietzsche’s power relations requires two or more parties, illustrating that power is something relational among individuals (14). As such, the penal relationship presents a distinct power dynamic, derived from the creditor-debtor relationship. Plainly, the creditor exercises an asymmetrical amount of power as he has something that the debtor needs or wants. On the other hand, the debtor has little power to resist, especially if he is in need of the creditor’s good. An asymmetry, then, exists between the creditor and debtor. Such inequality is mirrored in the punisher-punished relationship where the former exercises power over the latter, given that a good must be compensated. Given the desire for order—seen through the state and the economy—three points on human nature and punishment should be addressed here. First, the emergence of the state may simply be a “pleasure, delighted in the promised blood,” a mechanism that legitimizes infliction of suffering (15). Thus, instead of producing order, the state may simply serve as a means of exacting revenge on other individuals through a legitimized relationship. For example, police violence is legitimized and allowed to persist by the law (16). Second, the desire for punishment appears as a type of desire satisfaction, which signals that humans desire order. Simply, there is pleasure in order and reestablishing order through suffering. Rather than repaying money in the creditor-debtor relationship, the loan is replaced by suffering. Third, there seems to be a degree of rationality in punishment. For example, adults are sanctioned more severely than children for criminal offenses. Thus, it seems that punishment operates on a scale of rationality, as it is supposed that children have not completely developed such faculties, or what is generally accepted amongst individuals, whereas adults do (17). In short, then, punishment is derived from the desire for order, due to inequality and competing wants. Punishment reestablishes order when a standard—originally custom, presently law—is broken. Through a genealogy of punishment, certain aspects of human nature become readily disclosed. As such, punishment appears multifaceted, but likewise contained within a certain paradigm, that of history and custom. Thence, “punishment” appears to be “an attempt to reestablish order through a sanction on an offender, in accordance with human nature.”

II. How to Punish This section of the paper will discuss a theory of how punishment should be practiced, as derived from human nature. Human nature appears to want order through punishment or sanction, but punishment appears to have secondary aims. Nietzsche identifies a list of secondary aims, besides the primary aim of order. For example, punishment also seeks revenge, deterrence, and reformation (18). This pa- per will now explicate the primary and secondary aims of punishment and analyze their current practice. In this way, it will be illustrated how punishment based on human nature would be conducted and how current practices deviate from these theoretical ideals. Order—the primary goal of punishment—is crucial to the practice of punishment. The basis of order is fair expectations, as has already been discussed. The notion of order, when tied to fair expectations, illustrates two aspects about how to punish. First, punishment requires a relationship of two or more individuals, most clearly seen with Nietzsche’s creditor-debtor example (19). A relationship between two individuals allows for a good to be extracted and a sanction to be applied, which releases the offender from his duty or debt. Thus, punishment must establish a relationship between individuals, thereby allowing order and therefore human nature to exist among them. Overall, this phenomenon is both practiced and disregarded in modern punishment. The modern offender engages in various relationships—with the warden, with the judge, with the prison-worker, with the doctor, with the criminologist— that allow for a good to be extracted and a duty absolved (20). However, this is not always the case. Solitary confinement is readily practiced in the modern penal system, undermining punishment’s goal of reestablishing order between individuals. Namely, by isolating an offender, it is impossible for the offender to form and maintain a given relationship, thereby disregarding a fundamental necessity of order (21). Moreover, even if it is the case that solitary confinement is not permanent, the relationships in question are disrupted (22). This not only limits the goods that can be extracted from the offender, but also creates an unequal power dynamic that further forestalls the absolution of the offender’s duty. That is, by confining the offender, he is rendered more unable to adequately engage in the relationships required by order-based punishment. Moreover, this power asymmetry strips the offender of his agency, which is of value, and contributes to disorder. Ultimately, to improve punishment, such an unequal power dynamic must be remedied. Second, in regard to order, is the notion of fair expectation. Fair expectations highlight the proportionality of a claim, as illustrated in the creditor-debtor relationship. The debtor and the creditor have an agreement on how much money should be returned to the creditor. While there exists an asymmetrical power dynamic among the creditor and the debtor, the agreement itself is fair (23). Thus, punishment requires a level of proportionality, due to the fairness of the original agreement. The proportionality of a sanction establishes a reasonable duty that is imposed on the offender, as a means to reestablish order. However, fairness as it relates to order is rarely practiced. Punishment in the United States is far from proportional, affecting minority and low-income individuals at a much higher level. These disparate impacts violate the original agreement of fairness and call into question the validity of the original agreement. Similarly, the modern penal system often places a burden on individuals, aside from the actual punishment. The offender often faces the prospect of losing his job, his family, and his friends (24). Hence, disproportionality is endemic to modern punishment. Aside from order, punishment also aims to exact revenge, deterrence, and reformation. In theory, these secondary aims support the primary goal of order. However, when improperly executed, these secondary goals actually subvert the primary end of order. Through an analysis of all three secondary aims, it will become clear that there are grand discrepancies between the theory and practice regarding punishment. The idea of revenge being an aim of punishment is grounded in Nietzsche’s work, namely the “slave morality” and his creditor-debtor relationship (25). Unable to alter the past, a wronged individual seeks to will the present and the future. To do so, punishment deprives the offender of future possibilities. Simply then, the offender must repay for his actions in sufferings that occur in and possibly over time (26). Revenge, then, desires that the offender suffers, requiring a unique relation- ship between a victim and an offender. However, in practice, revenge deviates from its theoretical framework. First, it is forbidden by modern law; second, it is expressive (27). As for the former, revenge is viewed negatively, seen by many as a type of desire to be suppressed. Only the law can punish, not private individuals. Nevertheless, the law appears to be a façade for this vengeful desire, concealing this vengefulness in its legitimacy (28). Although not always physical retribution, the law legitimizes the unsupervised and unwarranted violence of the few, seen in modern police practices (29). Moreover, punishment as revenge is expressive. Mainly a part of the retributivist framework, revenge is an expressive punishment that allows for the symbolic expression of disapprobation (30). Punishment creates a new social stratum of the delinquent (31). This social stratum unites society by providing a scapegoat that can be examined, questioned, and blamed. Thus, revenge is cathartic, creating a unified relationship between members of society against the delinquent population, as seen in Connolly’s discussion (32). Therefore, practical punishment should inflict warranted suffering on an offender and create an offender-victim relationship. However, in practice, revenge inflicts unwarranted violence that scapegoats the offender to unite large groups, perverting the aforementioned relationship. For instance, unwarranted violence against Black Americans, under the guise of punishment, has long served to unite whites around ethno-national identity. Yet, such unity under the guise of punishment is actually counterintuitive, given that through these means, the primary goal of order is subverted. Indeed, this prevents the creation of a legitimate, properly-ordered system. Deterrence is another aim of punishment, secondary to that of order. The idea of deterring crime suggests that individuals wish to live in an orderly society and have the ability to project into the future. Put simply, individuals can posit future relationships or possibilities where crime affects them. Thus, punishment deters other possible offenders from committing similar crimes in the future. However, deterrence supposes two connected ideas. The first is that individuals act rationally; secondly, it supposes that punishment is the appropriate means to deter crime. Deterrence, in theory, supposes the rationality of possible offenders and their ability to make cost-benefit analyses. The thought goes that by increasing the punishment for a given offense, individuals will be less willing to commit the crime as the benefit of committing an offense is overshadowed by the punishment for that offense. Notwithstanding this consideration, deterrence is very different on a practical level. Didier Fassin notes that the punishment used to deter crime is often aimed at humiliation and shaming, aimed at emotion, instead of rationality and cost-benefit analyses (33). Therefore, the theory behind deterrence, which is based on the conception of rationality among individuals, is overshadowed by irrational practice that subverts the primary goal of order. Deterrence, in practice, supposes not the rationality and dignity of humans, but rather exploits the social relations of individuals. Through such exploitation, the creation of a proper order is forestalled. This may partly answer why punishment aimed at deterrence fails, failing to support the primary goal of order (34). Finally, punishment has the secondary aim of rehabilitation. The idea of re- habilitation is important to maintaining the primary goal of order through punishment. In theory, rehabilitation has two key aspects: temporality and relational existence. Temporality is crucial to human nature and is tied to the goal of rehabilitating an offender. The idea of rehabilitation supposes that an offender remains the same responsible agent over time and likewise that the offender can change and adopt the laws and norms of a society (35). By attempting to reform an offender, the offender is forced to face the past and reflect upon the offense that was committed. During such a reflection, part of human nature is unconcealed, in the sense that the individual can gain understanding about himself (36). With this reflection, the offender is prompted to project into the future, where he will not commit the offense, drawing off the present insight, which is provided by the reflection on the past. As a result, the offender recognizes his own temporality, his possibility aside from crime and the temporality of the penal system. Relationality is also tied to rehabilitation. The notion of rehabilitation requires that an individual is aided by another individual. Usually, this takes the form of an offender and an authority figure, such as a therapist, a teacher, or a doctor. Although the offender-authority relationship is originally based on an asymmetry of power, the rehabilitation process diminishes the asymmetrical power dynamic as the offender reforms. Theoretically, over time, punishment serves to help the offender regain his standing in society, having “paid his debt to society.” Due to this symmetrical relationship of rehabilitation, the offender can understand his human nature and his past, knowing that the future will be based on relationships with other individuals in a given society. In short, rehabilitation awakens an of- fender to his human nature and diminishes the asymmetry between offender and non-offender. However, modern punishment falls short of rehabilitating offenders. Instead of engaging offenders with their temporal and relational being, punishment urges recidivism (37). Those who are punished by the modern system are disempowered and hardened in their ways. Rather than operating on the notion of individual responsibility, offenders are maligned; offenders are made out to be “[monsters]” beyond rehabilitation (38). Likewise, instead of turning offenders to the future and their possibility, the penal system focuses on the past and the asymmetrical power relations created by the past. This is best seen in Fassin’s ethnographic work, as prisoners are punished simply due to their past (39). For example, without the ability to secure adequate jobs or housing, many offenders turn back to crime, leading to high lev- els of recidivism. By limiting the opportunities available to former offenders, and contributing to recidivism, order-based punishment is undermined. Rather than a properly ordered system, offenders are thrust towards further crime and disorder. Offenders are neither rehabilitated nor empowered; offenders are trapped in the past, which forestalls their ability to recognize and to contribute to order. Punishment, namely how to punish, seems complex but grounded in human nature. Focusing on order, the ideas of relationality and fairness are clearly espoused. In regard to the other aims of punishment, the unique ideas of temporality, suffering, and rationality are clearly presented. However, the goals of penal theory are far from the actuality of penal praxis. Instead, the modern penal system perpetuates asymmetric relationships that alienate offenders and highlights the desire to faire le mal pour le plaisir de le faire (40). In such practice, human nature is blatantly disregarded, necessitating reform in punishment.

III. Improving Punishment Punishment, as has been discussed, is based on a relationship and can thereby be described as just or unjust. As a concept, justice entails what should be given or done to others. Here, justice has a multiplicity of characteristics, yet one characteristic seems crucial to justice and is tied to human nature: relationality. Notably, justice defines the obligations and rights between individuals (41). Since relationality is an aspect of justice—which is paramount to reducing the discrepancy between theory and practice—reformation regarding relationships appears crucial to im- proving punishment. Practical punishment, as based on a power asymmetry, appears unjust. This power asymmetry is unjust because it strips the offender of his agency, which is of value. Therefore, the task of justice, regarding practical punishment, is reducing the power asymmetry between the offender and others. By reducing this asymmetry, offenders will better understand their nature, creating a proper order that is respective of the offender’s agency. Moreover, a more symmetric power dynamic would intuitively reduce the problems created by practical implementations of revenge, deterrence, and rehabilitation. That is, by having a more symmetric power relationship, not only will offenders be more capable to oppose these practical injustices, but punishers will be less likely to commit such injustices. To be more just, the penal systems must reduce the asymmetry of power relations by highlighting the agency of the offender. Instead of passively going through the penal system, the offender must exercise his unique human agency. The root of this aforementioned asymmetry arose from the penal process. Both Connolly and Fassin underscore the asymmetry of the modern penal system in their work. In regard to the former, the rhetoric surrounding the offender dehumanizes him, making the offender equivalent to an animal, one that needs to be tamed (42). In regard to the latter, the individuals are at the mercy of the penal system, unable to exercise their human capacities (43). This is further seen in the strict penal regiments of prisons and the rigid punishments of statutes. To reduce this asymmetry, I argue that offenders should be allowed to propose their punishment for the crimes in cases where a judge or jury has found the offender guilty. To illustrate this proposal, I draw from Plato’s and Xenophon’s renditions of the ancient Athenian penal system during the trial of Socrates (44). Unlike the modern penal system, where the offender plays a passive role, in the trial of Socrates, Socrates is prompted to give his own defense and cross-examine witnesses. Moreover, when Socrates’ is found guilty, he is required to propose a punishment that would serve as recompense for the offense in question. The Athenian jury, in Socrates’ case, then votes to choose between the offender’s proposed punishment and that proposed by the prosecution. By doing so, Socrates is able to exercise his agency, despite the fact that he is sentenced to drink the hemlock. In the modern penal system, the offender is able to defend himself if he wishes, but often defers to an attorney. Most times, the offender defers because he does not have a strong, functional knowledge on the intricacies of the law. Hence, a lawyer—an expert on the law—is brought in to compensate for the offender’s lack of legal knowledge. This process strips the offender of his agency to directly affect the legal proceedings and thereby creates an asymmetric power relationship between the offender and others. I propose that offenders should be allowed to propose their punishment for crimes in cases where a judge or jury has found the offender guilty. To ensure that all offenders can propose their punishments, all citizens should be required to take some course on the law, so that offenders can have more agency during the trial’s proceedings and in sentencing. In the wise words of Plato, “if law is the master [...] then the situation is full of promise and men enjoy all the blessings that the gods shower on a state” (45). By allowing the individual to present a possible punishment, the offender is forced to assume responsibility for his actions. Here, the offender exercises his agency and presents himself as a responsible agent before the court. Hence, the offender will create a more symmetric power relationship with others, including those of authority in the penal system. The result of this symmetric relationship will be a more just penal system, with individuals capable of exercising their unique human capacities. A few brief words should be said on this suggestion. First, the prosecution would also propose a penalty, like in the Athenian system. Penalty proposals would allow for the judge or jury to decide the punishment of a case, while also maintaining the symmetry of the offender-authority relationship (46). Similarly, this method does not sacrifice any of the goals of punishment as it allows order and punishment’s secondary goals to be pursued. Finally, the idea of permitting the offender to have a choice in his punishment is not completely unsupported. Geoffrey Sayre-McCord argues that individuals should choose amongst various punishment plans to repay for an offense (47). Such a penal structure allows individuals to take responsibility and reimburses society with a proportional penalty. However, one may take issue with this potential solution on the grounds that such a solution has two counterintuitive implications: sentencing and asymmetric power relationships (48). As for the former, one might think that offenders will always choose the minimal possible punishment for their crime. Or even worse, drawing from the trial of Socrates, the offender may go as far as to argue that he should be rewarded, not punished. As for the latter, one might contend that an asymmetric power relationship still maintains within this proposal. Namely, it seems to be the case that the judge or jury in question is still more powerful than the offender because the former have the final say on the punishment. To salvage this proposal, it is necessary to assuage these concerns about sentencing and asymmetric power relationships. To each concern, there are two considerations that ought to be considered. With the concern of sentencing, two factors are worth considering. First, the proposal is pragmatically worthwhile because it leaves open the possibility that one chooses a punishment that is unlike a minimum sentence and is actually more beneficial. Here, instead of spending time in prison, an offender may choose to engage in public work programs. The possibility of a punishment that differs from the minimum sentence, but is actually beneficial, is an upshot of this view. Second, extreme sentencing is rejected. For example, take the case where a serial killer proposes the punishment of a $20 fine. In this case, it is reasonable to suppose that either (1) the prosecutor in the given case would propose a much more reasonable punishment for the crime or (2) that the judge and jury would consider the reasonableness of the proposal in question when making their determination (49). As a result, extreme sentencing would rarely occur. Rather, a domain of reasonable alternatives to punishment would become socially acceptable, perhaps including minimum jail time and participation in public work projects. Therefore, regarding sentencing, there are pragmatic benefits and reasonable constraints that bolster this proposal against challenges. A more concerning objection presses on the power dynamics of sentencing, given that the judge or the jury still hold a degree of power over the offender. Here, two considerations are important. First, while it is the case that the judge or jury exercises power over the offender, the degree of asymmetry in the relationship is noteworthy. Notably, according to the proposal herein defended, judges and juries exercise less power over the offender than they currently do. Although the proposal does not completely rid itself of this asymmetry, the proposal should pragmatically be adopted, given its upshot of reducing the current asymmetry. Second, in an ideal world, judges and juries would be benevolent and strive to engage in symmetric relationships. However, in practice, there is a concern that judges and juries would overly exercise this asymmetric power. With this in mind, it is questionable whether the concern over asymmetry solely hinges on the proposal herein defended. Rather, it seems that the quality of judges and juries is important. Thus, it may not be the case that the asymmetric power dynamic completely hinges on the account of punishment that has been offered; rather, in addition to this proposal, it seems that work should be done to reform judgeships and juries, so as to further eliminate the asymmetric power relation. Aside from these concerns regarding details of this proposal, one could argue that the solutions offered to ameliorate punishment are impractical in regard to the modern penal society. Such a claim can be based on concerns with the current structure of the penal system or on larger societal concerns. In regard to the former, it could be argued the modern penal system is incapable of adjusting to the recommended changes. For example, an institution—most likely schools—would be required to teach courses on the law, requiring an overhaul of the current curriculum. Similarly, preparing authorities to engage in discourse with offenders may require training and some type of incentivization. However, both of these challenges are easily refuted. Namely, these solutions could be gradually incorporated into the penal system over time, thereby allowing for individual and institutional adjustment. Rather than implementing a radical change, change over time would ease the economic burden incurred by improving the penal system and also allow for individuals to change their biases towards offenders. Moreover, schools alter their curriculum as they incorporate new requirements, such as physical education. Hence, instituting a minimum requirement for knowledge of the law appears feasible. A greater practical concern is the need for societal change as the penal system reforms. It would seem paradoxical if the penal system reduced the asymmetry of the offender-authority power relationship, but society still stigmatized offenders. The ongoing stigmatization takes on various forms: increased policing, reduced housing opportunities, or reduced employment opportunities (50). While this is indeed a legitimate concern, it misunderstands the aims of this paper. I believe that these changes are without a doubt necessary when addressing the issue of punishment, however, this paper only seeks to examine the legal penal system. These societal concerns—while important to improving punishment—appears outside the bounds of this paper. Nevertheless, I acknowledge that the entirety of punishment, beyond the legal penal system, must be examined to create a more just society and to ensure that there is no asymmetry between the offender and society after the former has repaid for his offense.

IV. Conclusion According to Michel Foucault, “western man has become a confessing animal” (51). Perhaps, however, it is better said that man has become a “punishing animal.” While this paper has only addressed legal punishment—that conducted by police, judges, and prisons—punishment is a societal phenomenon. From schools, to homes, to prisons, punishment is everywhere in society. The genealogy of legal punishment that was presented at the beginning of this paper illustrates that punishment is a fundamental derivation of man’s nature. While punishment may not be natural to man, it is a result of his nature. As such, a summary on the conclusions of this paper will help delineate the human nature that influences penal practice. The ideal of punishment was shown to have both primary and secondary goals. The most important of these goals is order, yet punishment aimed at order requires relationality. The nature of relationships, in the ideal penal theory, were shown to be fair and symmetric. However, when juxtaposed to the realities of modern punishment, it became evident that practical punishment was heavily based on the creation of asymmetrical relationships between the offender and penal authorities, thereby devaluing the human nature of the offender. A combination of increased agency and increased discourse was proposed as a means to reduce this inherent asymmetry. By empowering the offender, the penal system appears to become more just. These solutions seem promising and feasible, withstanding refutations that challenge the accounts provided. Although this paper has addressed punishment, some changes are needed beyond punishment, regarding the social and economic burden that punishment places on the offender and those associated with the offender. Moreover, work must be done to examine the effects of this paper’s paradigm on innocent individuals that have been convicted of an offense. However, legal punishment has been addressed in these pages. This is only one step towards this more just society. Such reforms are possible, among intellectuals and society-at-large: the ideal is not out of sight.


1 The list of those involved in “legal punishment” that is provided above is non-extensive. From here on, “punishment” will refer to “legal punishment,” unless otherwise specified.

2 The United States is used as the case study of this paper for two reasons: the prevalence of punishment in the United States and the author’s familiarity with the American punishment system. 3 See the post-modern and post-structural schools of thought. For the former, see Friedrich Nietzsche’s Thus Spoke Zarathustra. For the latter, see Gilles Deluze and Félix Guattari’s Anti-Oedipus: Capitalism and Schizophrenia.

4 See the difference between Thomas Aquinas and Friedrich Nietzsche. For the former, see Aquinas’ On Law, Morality, and Politics. For the latter, see Nietzsche’s Thus Spoke Zarathustra. 5 Nietzsche, Friedrich, Nietzsche: On the Genealogy of Morality (Cambridge Texts in the History of Political Thought) (Cambridge: Cambridge University Press, 2007), 41.

6 Nietzsche, Thus Spoke Zarathustra (NewYork: Penguin Books, 1969), 123; Rousseau, Jean-Jacques, The Discourse and Other Early Political Writings (Cambridge: Cambridge University Press, 1997), 131. 7 Hobbes, Thomas, Leviathan (Indianapolis: Hackett, 1994), 75.

8 Augustine, City of God (New York: Bantam Doubleday Dell, 1958), 452-453.

9 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993).

10 Carter, James, Law, Its Origin, Growth and Function (London: Forgotten Books, 2018), lectures 1-5.

11 The idea of “monopolization of the means of violence” comes from sociologist Max Weber.

12 Fassin, Didier, The Will to Punish (New York: Oxford University Press, 2018), 47-51.

13 Nietzsche, Nietzsche: On the Genealogy of Morality, 40.

14 Foucault, Michel, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1995), 93-4.

15 Rabinow, Paul, Truth and Power: The Foucault Reader (New York: Pantheon Books, 1984), 85.

16 Fassin, Didier et al., At the Heart of the State: The Moral World of Institutions (London: Pluto Press, 2015).

17 Locke, John, Two Treatises of Government (Cambridge: Cambridge University Press, 1960), 322-323.

18 Nietzsche, Nietzsche: On the Genealogy of Morality, 53-54.

19 Ibid, 40.

20 Foucault, Discipline and Punish, 256.

21 Fassin, The Will to Punish, 76-77, 83.

22 I thank Sotonye George for the point.

23 The need or want of the debtor creates this asymmetry. The asymmetry can also be produced due to natural inequality or dire circumstances. However, within this dynamic, the agreement is fair as both parties reasonably agree to it within the asymmetric relationship. 24 Feeley, Malcolm, The Process is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979), xv; Foucault, Discipline and Punish, 268. 25 Nietzsche, Nietzsche: On the Genealogy of Morality, 20, 40. 26 Foucault, Discipline and Punish, 232. 27 Revenge on the individual level is prohibited, but modern law does not preclude the idea of institutional vengeance. 28 Rabinow, Truth and Power, 85. 29 Fassin et al., At the Heart of the State.

30 Fassin, The Will to Punish, 69.

31 Foucault, Discipline and Punish, 170-184, 266-268.

32 Ibid, 53.

33 Fassin, The Will to Punish, 72-74. While it may be possible that these emotional pathways have or include some rational content, appealing to emotions deviates from the original appeal to strict rationality associated with deterrence.

34 Foucault, Discipline and Punish, 261.

35 Fuller, Lon L., The Morality of Law (New Haven: Yale University Press, 1964), 162. Modern legal systems seem to suppose human responsibility in punishment. This seems to be a key tenet of rehabilitation. 36 Heidegger, Martin, The Question Concerning Technology and Other Essays (New York: Garland, 1977), 35.

37 Foucault, Discipline and Punish, 265.

38 Connolly, William E., The Ethos of Pluralization (Minneapolis: University of Minneapolis Press, 1995), 45.

39 Fassin, The Will to Punish, 75-77.

40 Nietzsche, Nietzsche: On the Genealogy of Morality, 41.

41 See Scanlon, Thomas M., What We Owe to Each Other (Cambridge: Belknap Press, 1998); Rawls, John, Justice as Fairness: A Restatement (Cambridge: Cambridge University Press, 2001), 5-6; Miller, David, “Justice” in The Stanford Encyclopedia of Philosophy (Fall 2017).

42 Connolly, The Ethos of Pluralization, 45. 43 Fassin, The Will to Punish, 72-77. 44 See Plato, Plato: Complete Works (Indianapolis: Hackett, 1997), and Xenophon, Xenophon: Memorabilia, Oeconomicus, Symposium, Apology (Cambridge: Harvard University Press, 2013). One might argue that the trial of Socrates is the pinnacle of injustice. Yet, not only is such a position disputed, but my proposal solely attempts to schematically draw upon this example. I thank Tianyu Zhou for pushing me on this point.

45 Plato, Plato: Complete Works, 1402.

46 By allowing the judge or jury to decide between the punishments proposed by the prosecution and defense, the convicted offender is still punished if he proposes a reward as his punishment, as was the case in the trial of Socrates. 47 Sayre-McCord, Geoffrey, “Criminal Justice and Legal Reparations as an Alternative to Punishment,” Philosophical Issues no. 11 (2001), 505-506, 509. 48 I thank Morgan Cutts for pressing me to address this objection.

49 Note that this is an inclusive disjunction.

50 This list is not extensive but attempts to highlight some of the scenarios that affect offenders due to their offender-status. 51 Foucault, Michel, The History of Sexuality: An Introduction (London: Penguin, 1990), 59.

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