Subjectivity of Morality: Herbert Morris
Herbert Morris’ essay, “A Paternalistic Theory of Punishment,” revolves around the concept that the state’s purpose is to guide its people towards a defined moralistic good, and thus must punish with such intentions in mind. Through the analogy of a parent raising their child, Morris establishes his central point that the most effective use of punishment is one that provides for autonomous people who can self-reflect on how they should fit the mold of that which is good. Though Morris' argument for paternalistic practices in punishment is structured well and accounts for pieces of the psychological backing used within the oversight of governments today, it falters in that it ultimately relies upon the contradictory and relative nature of autonomous individuals collectively adhering to assumptions of a specific morality.
In approaching the issue of how to rightly punish, Morris describes how he will “…set out a variety of moral paternalism, for the good that is sought is a specific moral good…' to draw the inference '…that a principal justification for punishment is the potential and actual wrongdoer’s good.” He proceeds with presenting broad characteristics to establish what exactly this “good” entails, how it applies to human behavior, and why it is necessary to his central theory. In short, these criteria of the good necessitate that one has empathy concerning their transgressions, that one feels guilt, that one looks to the future and resists the instinct to do wrong, and that one attaches themselves to the moral, responsible person. Morris emphasizes that all these qualities are exemplified in a person who accepts their freedom, and attaches that freedom to that which is the moral good. This is the ultimate goal of his theory. The crucial aspect of one being autonomous also holds implications for how the correction of character must be applied in the form of punishment. In his theory, this requires an individual to be able to understand and accept their consequences, which achieves the goal of improving their relationship to the good. This means that the goal in and of itself is important only if the proper steps are taken to get there. Any instantaneous fix that automatically brought about the characteristics of Morris’ paternalistic good would not be compatible with his theory, as such conditioning would restrict the individual’s personhood. He then approaches how it is we should punish by implementing the common paternalistic approach of the parent-child analogy. Parents punish their children in a way that ideally fits into the following criteria: shows the connection of wrongdoing to the harmful response, shows the link of severity between the offense and the response, identifies the flaw of character as a part of the response, and fixes what has been broken in order to restore things to the way they were. The result of these punishments when conducted properly tie into the previously discussed criteria Morris presented for the specific good. In his words, '…the child's response to wrongdoing by feeling guilt, its willingness to accept some deprivation, and its commitment to acting differently in the future, all play an indispensable role in its restoring relationship it has damaged, relationships with others and with itself. The claim, then, is that this practice is, in fact, a significant contributing factor in one’s development as a moral person.” This selection is essential when analyzing Morris’ perspective, as this is what links the common paternalistic theory of governing to his unique interpretation involving the universal moral good. To bring the analogy full circle, he then discusses how the law should be applied in a manner very similar to how a parent should reprimand their child. The law should point us to what it is that is good and evil, punishment should show us how our actions affect others, and these corrections should result in wrongs being made right through self-reflection and a greater connection to that which is good. The goal of the government, just as the goal of the parent, should be to promote that which is best for those that are reliant upon them, and the most crucial thing that either is required to provide is the coercion for one to discover that which is good. This is the crux of all that Morris presents; punishment should seek to foster autonomous individuals attaching themselves to a specific moral good.
This central point is important because it forces the reader to analyze the context of morality and government, and causes us to question the nature under which the law should apply to our lives. Generally, people conceptualize the law as a protector of themselves from others, or as a tool to inflict pain on those who think it right to inflict pain. However, when we undertake a paternalist standpoint, many policies implemented are there to coerce a person to behave (or to not behave) in a certain fashion of which the government believes to be in the individual’s best interest. A significant example of this would be drug laws not only in the United States but around the world. When compared with legal substances such as alcohol and tobacco, many illegal substances are shown to be far less dangerous for the user and those affected by the user. Yet, because the authority believes these substances not to be in the best interest of its population, they reprimand citizens for using. As a means for taking a better look at the institutions that govern us, analyzing Morris’ take on paternalism is very valuable. With that being said, while his writing is culturally important and well written, his argument falters in both its soundness and relative applicability.
The foundation of Morris’ piece rests on a conception of a particular universal morality applicable to consenting citizens, which, when considering the details associated with such a suggestion, arguably making the theory utopian. While I concur that sometimes the authoritative figures in society may indeed have a more educated and accurate outlook on what is beneficial for its subjects, I feel like this is much more limited than Morris suggests. When it comes to certain advanced specialties of lawmakers and law enforcers (such as how to properly allocate a national budget or something as complex as large scale economic policies), it would make much more sense that the government behave in a paternalistic sense, as they should be acting in a way that they believe best for their citizens. However, with the center of this argument being the concern of punishment, moral wrongdoing, and the promotion of the essential good, his application of the relativity of morality upends his argument (he even realizes this to be so when addressing objections). When applied to an entirety of a population, the variance in the ideals and perspectives of individuals is so vast that having a singular common good is not only unrealistic but impossible. When we are unable to perfectly agree on that universal good, coercion without consent inevitably comes into play. This variable is the critical aspect of my critique and falsifies one of Morris' most important premises – that the people must be autonomous in their decisions concerning the good. Under his theory, if one acts in a way that does not align with this good, they should be punished in an attempt to alter their perspective to align with that of the many. While Morris makes claims that this is in an attempt for them to keep their individuality in a specific, acceptable light, this is fundamentally attempting to undermine the individual's perspective in favor of another, effectively stripping them of their autonomy. If individuality is set as a specific goal, it cannot be tailored in a fashion as narrow as to only have a singular result, for then it is not individuality at all. A theory as such, that on the surface level seems to foster ideas of freedom and self-discovery, more accurately seems to reject the concept. Dale Carpenter of the Creighton Law Review views a paternalistic theory similarly, stating that “it is based on the fear that people will not be able to use their freedom properly. It raises the fundamental question of whether the state may treat adults like children, substituting its judgment of their best interests for their own.' If autonomy is a necessary criterion for Morris’ theory of punishment, any idea of a universal good would necessarily be false, as it would indubitably violate such a principle. As previously stated, Morris also emphasizes that any sort of shortcut to an immediate fix in one's character would also violate the principle, because it prevents their ability to freely think and discover for themselves. But, I would argue that under his same logic, a universal good does not allow that individual to think and discover for themselves, as the good they are supposed to be striving towards only exists in an absolute form. Utilizing his theory, it would genuinely make more sense to condition the violator because if they are predisposed to a certain type of punishable behavior – especially when they believe such behavior is in their own personal best interest – they will continue to be punished. If the best interest of the individual in the eyes of the government is that they become part of this moral good, they would, therefore, be obligated to this form of conditioning, as otherwise, the individual will continue to suffer. Overall, this contradiction between autonomy and a specific good within Morris' argument calls for the theory to be broadened, as it would be sound if he eliminated one of the two.
The manner in which one might object to the argument I have presented against Morris could take several forms, but I believe that a specific two would be the most prevalent. The first of these being that Morris already addresses similar concerns with his rebuttal to the conscientious objector. The second, along similar lines, is that his discussion is not necessarily meant to apply to the real world, but is rather an idea that we should strive towards. In response to the former, this would be a valid rebuttal if the essence of my objection were specifically of the subjectivity of morality in the world. When discussing the ways that his argument may be criticized, he considers the case of an individual who knows what they are doing is wrong but believes it right to do so, effectively showing that ideological specifications of right and wrong vary from person to person. Morris responds to this by stating that “the norms addressed to persons are generally just…” and that “there is a general commitment among persons to whom the norms apply to the values underlying them.” This is a perfectly valid response to my belief that morality is of itself a relative entity for each individual, as it predisposes that we are in a world where such conditions are possible. However, it does not address the contradiction presented of autonomy and coercion and therefore is not a satisfactory condition to criticize my argument. Where the issue in my rebuttal may lie is in this idea that the concept is applicable under only certain conditions, which are not possible in the real world. Morris states that 'the theory is, of course, not intended as a description of any actual practice of legal punishment or even as realistically workable in a society such as ours. Things are in such a state that it is not.' This is problematic to my perspective. I would say that by implementing this idea within his text, Morris weakens his position. By saying that a paternalistic theory of punishment under his definition is not actually possible, and merely something to think about, he perverts his ability to cause any reform where he could have instead suggested areas of a society or legal system where it may serve to the benefit of its people. My argument of the blatant contradiction between two incompatible ideas struggles because within a utopian society, maybe autonomy and coercion could be a compatible thought. Such thought experiments do hold their value, and Morris' ideas possess it as well. In the world we live in however, it cannot be so, which greatly diminishes its potential impact. In essence, utilizing one's specific conditions to make one's theory feasible is not a rational way to overcome an objection, as it cannot be logically processed and rebutted by the critic. To conclude, Morris' theory may not apply to the real world, and this may give it sustenance in his mind, but relying on a specific morality attached to an autonomous individual is a contradictory combination that his paternalistic theory of punishment cannot rest upon soundly.
Morris developed an argument for paternalistic practices in punishment that applies to many philosophical tendencies of the law that we see today, and that allows us to question how it is that our institutions should function, but relying on the individual’s collective adherence to a specific morality is far from an applicable condition. In this reliance, Morris left many contradictions and relative notions that need adjustment and clarification to solidify his theory. Utilizing the concept of autonomy tied to a specific moral good inherently restricts that autonomy itself. While his ideas are important and do hold value, the conflicting premises leave his argument for a paternalistic approach to correction without a sustainable base of support, making it less effective as a whole.
- Carpenter, Dale. “The Antipaternalism Principle in the First Amendment.” Creighton Law Review 37, no. 2 (2004): 579–652.
- Tonry, Michael H. Why Punish? How Much? A Reader on Punishment. Oxford: Oxford University Press, 2011.