Punishing Criminals: Concerning a Very Old and Painful Question, by Ernest van den Haag, New York: Basic Books, 1975, $11.50.
Van den Haag's is a book of varied content. It opens with some reflections on the philosophy of law and the increasingly debated issue of punishment. It next turns to a treatment of the causes of and nature of crime, especially in modern-day America, with an emphasis on New York City. It is sometimes an a priori discussion of the issues involved and sometimes a venture into empirical sociology. In the last section, van den Haag addresses the live social concerns of the appropriate kinds of punishment to be used in modern society.
The style of exposition invites the comment that this is a group of essays in search of a book. Topics shift abruptly, announced by section headings. Methods of treatment shift almost as abruptly. One wonders, while reading it, what van den Haag had in mind as the unifying principle of this book. I think that the satisfaction of this wonder can be found on page 111, where van den Haag remarks, "I have suggested throughout that deterrence is the most important of the utilitarian functions of punishment, though it is fashionable to discount it." Given this backdrop, the book can be seen as, first, a defense of that claim; second, a description of the modern criminal justice system in America, which, to an alarming extent, fails to realize the goal of deterrence of crime; and last, a discussion of the relative desirability of alternative modes of punishment measured by their effectiveness in realizing that goal.
In the course of working through this book, the reader will be confronted with an extensive compilation of evidence, often punctuated by bright, imaginative observations and speculations. The amount of data and the informative character of most of it are impressive and should repay the attention of someone interested in such matters. I, unfortunately, cannot comment on the extent to which the evidence cited is representative of that available for citation. Nor can I evaluate the evidence. Rather, I will take up some of his theoretical considerations.
The imaginative interpretations and hypotheses offered by van den Haag, while brightening the book for one of a speculative bent, seem to range in value from insightful to implausible. An example of the latter is his explanation of the decline of the use of torture and mutilation as forms of punishment, due, says van den Haag, to the sexualization of such behavior in the 18th century by the likes of de Sade and to the supposed impossibility of using libido-infected acts for "realistic (ego) purposes" (pp. 203-6).
An example of the insightful is his observation that the attempt to overcome supposedly unjust market distributions of wealth by political means "would amount to a distribution in accordance with political ability and would produce a different, but certainly not a more equal or a morally more acceptable, distribution of income than is now provided by the market: political ability is no more identical with moral merit than is the economic ability that wins in the market place" (p. 32).
Those who are interested in individual liberty will have good reason to find fault with much that is central to this book. Two of these features are worth noting. First, van den Haag accepts the propriety of laws forbidding both malum in se (that which is morally wrong, or wrong whether or not outlawed in a particular code) and malum quia prohibitum (that which is "wrong" only because the law forbids it). That is, he takes the state to be authorized to base laws on considerations other than of what is morally proper in human relations. Thus van den Haag is prepared to see the law ignore or mandate against justice. "Justice is only one value within the social order, albeit of peculiar importance. Other values such as survival or freedom, are no less important.…Thus, justice may be impaired to preserve or enhance another value, or the social order as a whole." (p. 36.)
He even goes farther than this along conservative lines when on the next page he claims that governments ought to follow the directive "salus publica suprema lex ('the public welfare' or, directly, salus populi, 'the welfare of the people,' is 'the highest law'). Whenever the public welfare—order—is in conflict with justice to individuals, it is the duty of governments to make the public welfare prevail." Given its relative unimportance in van den Haag's scheme of things, whatever the "peculiar importance" is that he imputes to justice, it must be very peculiar indeed.
The second point of disagreement that I find worthy of mention is the claim he seems to be making that the business of the criminal law and its enforcement is to describe and insure a certain approved pattern of action in society. This is evidenced in his analogy between physical laws and criminal law (pp. 18-21), about which I'll have more to say later. A better view, however, is that the aim of the criminal law is to provide general public guidelines for actions that preserve the rights of individuals. But general guidelines do not define an order. Rather, they presuppose a goal (maybe an order, maybe not) and offer descriptions of actions that in most, but not all, cases are conducive to or destructive of those goals.
One hears of the case of the free-market fire company that, against the owner's express wishes, drives over that worthy's flower plot to reach the scene of the fire on its subscriber's adjoining property. There should be laws against trespass. The fire company ought to have done what it did. The court that adjudicates the case brought against the fire company by the aggrieved flower grower should secure payment for damages but should find the fire-fighters' actions to be noncriminal.
But van den Haag seems to want none of this. He has a less flexible model in mind. He writes, "Disregard of physical laws is naturally dangerous and unprofitable; disregard of legal laws must be made so socially, if people are to be deterred from disregarding them: lawbreaking cannot be allowed to produce the results sought by lawbreakers" (p. 19). Presumably, the law would be defiled on this view unless the subscriber's house burned down in my example. A theory of a worthwhile society is not well served by this conception of law.
For the most part, the level of discourse in this book is more that of contemporary political exchange than that of a philosophical discussion of the ethical issue of punishment or the philosophy of law. All that is well and good, and van den Haag presents a popular discussion that is, on the whole, no worse than, and sometimes better than, is usually found in such writings. Occasionally, however, he attempts to attain a more abstract level by appealing to points of philosophy or philosophical analyses of his own. Here the results are rather uniformly less than happy.
Consider the distinction he attempts to draw between compulsion and causation, in the context of a discussion of deterministic defenses against charges of culpability—that is, defenses resting on the denial of free will. Such a distinction would be worth drawing if only because it might alleviate the murk that usually attends discussions of such defenses. But when van den Haag attempts to make out this difference, he articulates it as compulsion being but a particular type of causation. He writes: "General determinism is used to explain crime because of an insufficient distinction between 'causation' in general and 'compulsion,' a special kind of causation. It is as though one confused 'weather' with 'rainstorm' and concluded that all weather is a rainstorm." (p. 109.)
Here, van den Haag is using "compulsion" in a loose sense to cover not only compulsion but also coercion, threat, and duress (p. 109). Thus his distinction would work against the deterministic defense only if that defense attempted to treat any causal factor of an action as an excusing condition. But it is just those types of cause that van den Haag subsumes under his expanded sense of "compulsion" that count for the deterministic defense—those factors causative of the action of the agent and outside the agent's control. So, how could van den Haag hope to put this distinction to use for his ends here?
He seems to have vaguely apprehended this point, for he follows up on it with a terribly strained example to try to make the distinction he has offered work as a counter to the deterministic defense. "To illustrate: I cause you to come to the forbidden place by asking you to—but you decide to let yourself be persuaded. Though it was caused (by my asking), you are responsible for your decision." (p. 109.)
This example is surely confused. It is certainly not the case that the asking constituted a cause of the action—it was neither a sufficient nor even a necessary condition for the action being performed. It might have been one of the several factors that together constituted the causal nexus of the action, but that is nothing to the point of its putative causal status. If I boil water on a stove, I put it in a pot in order to do so, but it would be misguided to say that my putting it into the pot was the cause of its boiling. In order to make his attempted distinction between compulsion and cause seem to apply to the sorts of cases at issue, van den Haag abuses the concept of cause in the one example he offers.
A substantive differentiation of compulsion from causation—one of the sort ignored in the deterministic defense and one that isolated the unique absence of a necessary condition for responsibility in compelled actions—would have been helpful here. But van den Haag attained only one of these conditions in his passage on the subject.
While we are on the subject of causation, I would like to remark on another muddle in one of van den Haag's more philosophical passages. I draw the reader's attention to his comparison between laws of nature and prescriptive laws. The comparison he offers is too exact to be true. He says things like: "Physical laws are unavoidably obeyed. They are self-enforcing. To defy the law of gravity is to defeat one's purpose and to suffer injury. Experience soon teaches us to attain what we wish by conforming to physical laws." And, he says: 'The laws legislated by society are not self-enforcing. They become effective only when society does for them what nature does for its law—when society defeats the purpose of those who ignore its laws, or inflict punishment." (pp. 18, 19.)
I know perfectly well what it would be like to disobey a law passed by a legislature. I have no idea what it would be like to disobey, or even to try to disobey, a law of nature. Such talk ignores the important difference between the prescriptive character of the laws humans enact and the descriptive character of laws of nature. A law of nature is a true description of all events of a certain sort—including any possible action of mine of the sort in question. If the description of an act of mine is inconsistent with the description of such acts afforded by a law of nature, it is self-contradictory and, as such, fails to describe anything at all. Prescriptive laws cannot attain to this state. No matter how severe the penalties attending to my acting against them, I can so act and sometimes even should.
The comparison between physical and legislated laws is central to van den Haag's position. Without it, and the picture of the ideals of law and of the criminal justice system that he suggests via this false analogy, I do not think that he makes out his case for the fundamentality of the goal of deterrence for punishment. But the analogy is false and the ideals offered for law seem unrealistic and improper.
So the book strikes me as fundamentally flawed. Its philosophical underpinnings seem misguided. This does not, however, wholly detract from the general worth of this book, read carefully, as a contribution to contemporary dialogue on political issues. For if deterrence is a worthwhile goal of the criminal justice system, which in a large number of cases it surely is, then the various things that van den Haag has to say about the means for its attainment are of value. The picture he presents of a contemporary American system that fails to secure this end provides an especially valuable contribution to an important contemporary discussion.
Roger Lee who is nearing completion of his doctoral program at University of Southern California, teaches philosophy at California State College at Los Angeles. An article of his on punishment appears in The Libertarian Alternative: Essays in Social and Political Philosophy.
This article originally appeared in print under the headline "Punishing Criminals".