1. Nussbaum misreads the Oresteia
I have noted that it is always unnerving to find yourself disagreeing with Martha Nussbaum. This is especially the case in matters of classics exegesis. But no matter.
Nussbaum opens the book with an intriguing re-interpretation of the Oresteia. At the end of the cycle, the carnal, animalistic impulses of the Furies somehow morph into the gentle, judicious judgments of the Eumenides. The transition from Furies into “blessed ones” is representative of the evolution of justice from blood vengeance to the rule of law. Yet Nussbaum goes one step beyond this traditional reading, arguing that the Furies aren’t just forced to accept the constraints of law imposed by the civilized state around them. More than that, the Furies have fundamentally transformed their very nature. They no longer embody the primal impulse for retributive justice. They are now reason-giving and impartial, motivated not by anger, but by benevolence. As she puts it: “Aeschylus suggests that political justice does not just put a cage around anger, it fundamentally transforms it, from something hardly human, obsessive, bloodthirsty, to something human, accepting of reasons, calm, deliberate, and measured.”
This seems to me to go too far. It is true that Athena ends the cycle of blood-vengeance by institutionalizing a permanent body to dispense a new, procedural justice. Yet unlike Apollo, who scorns the ancient past, Athena seeks reconciliation with it. She knows that the Furies remain “the court of last appeal, the final blood avengers,” and she recognizes that their ancient passions cannot be excised; they must be built into the foundation of political justice. After initial resistance, the Furies agree to make their new home both within and beneath the city of Athens themselves. They become the Eumenides on Athena’s promise that they will continue to dispense their ancient justice, only now through the proper procedure.
It seems to me that the Furies, then, have not undergone a transformation in their fundamental essence. It remains their responsibility to oversee the people of Athens, and when man defies their justice, “their crushing hatred hits him, their implacable rage grinds him down to dust.” Vengeance and anger still constitute the most basic foundation of justice. While the new court of Athens is composed of wise and judicial citizens, Athena has literally built this system on top of the ancient structure of blood-vengeance. Athena’s new civic justice remains nourished and legitimized by the primal passions of an older age.
I think there is wisdom in Aeschylus’ teaching (as I have interpreted it). On my reading it is impossible to do away with the anger and retribution of ancient justice. Those impulses aren’t vices to be tamed, they remain the very foundation of our thinking about justice and desert.
2. Nussbaum’s emphasis on the “payback wish” misrepresents the strongest case for retributivism
Nussbaum’s critique of retributivism is grounded largely on her dismissal of the “payback wish.” By this, Nussbaum understands retributivism to be motivated primarily by an incoherent, futile belief that punishment will somehow restore cosmic balance to the universe. But of course, sophisticated retributivist theories never place too much value in a kind of schadenfreude—the sentiment conjured up by Nussbaum's “road of payback.”
Nor should retributivists be particularly troubled by Nussbaum’s insistence that such payback is “futile.” By this, Nussbaum means that the executors of retributive justice will never “get back” what they lost. The crime against them has been committed, and no punishment will restore what has been taken. That is all certainly the case. But it is also irrelevant. Sophisticated accounts don’t treat retribution as merely restorative. The original crime of course cannot be undone. But that’s not the point. Retributive anger is essentially other-regarding, not self-regarding. Retribution tracks deserved treatment; it has nothing to do with the fanciful wish to get something back. Retribution is not, as Nussbaum would have it, a futile exercise in self-satisfaction, it is a resonant principle of other-oriented justice.
This realization leads us to a much deeper problem with Nussbaum’s analysis. On her view, the central problem with anger and retribution is that they are “backward-looking.” True justice requires a transition from that backward-orientation toward the future. But what exactly is wrong with the kind of backward-lookingness she associates with retributivism? To see the limits of the view, let’s consider cases of deserved good-treatment. Acts of kindness or generosity trigger in the recipients certain reciprocal moral obligations. Those obligations aren’t grounded in a kind of abstract consideration of what will make the future go best. They are instead sensitive to real, morally significant acts taken in the past. The duties of gratitude, for example, are moral obligations that guide future conduct rooted in a consideration of what came before. This has nothing to do with producing cosmic harmony, as Nussbaum suggests. It is instead a simple recognition that moral desert can be rooted in the past and can nonetheless shape future-oriented obligations.
To take another example, consider the moral pull of the call for reparations for the descendants of American slaves. This particular issue is itself quite complex and deserving of a fuller treatment. But the case for such reparations is not most plausibly rooted in some general belief that greater redistribution will ex ante make things go best. Instead, the policy is attractive precisely because of the historic wrong it tracks, and because of the demands of deserved treatment those historic wrongs evoke.
Many more difficulties remain with Nussbaum’s critique of retributivism that can be adequately addressed here. I remain convinced that retribution is the basis of just punishment in large part because all the other alternatives seem to justify far more than is acceptable. For instance, if punishment is to be justified entirely on some account of what makes the future go best, it is difficult to understand the wrongness of punishing the innocent. Nussbaum does have some things to say on this point, but none that prove particularly compelling to me. But this broader point of dispute demands a more systematic treatment than I can provide here.
3. Nussbaum’s discussion of incarceration and the justice system is wholly inadequate
Perhaps the least satisfying section of Nussbaum’s book is her brief discussion of the American criminal justice system. America’s mass incarceration, on her view, stems directly from our incoherent retributivist impulses. She appends to this diagnosis an almost obligatory invocation of racism as a significant motivation in shaping America’s legal structure. I do not wish to argue that Nussbaum is wrong in this diagnosis of the American incarceral state. I wish merely to point out that her discussion is inadequate.
No serious, good-faith effort is made to engage with the suggestion that incarceration has substantially reduced crime and has produced significant improvements to social welfare. The tone of Nussbaum’s discussion here implies that such an empirical hypothesis is so absurd as to merit no serious consideration.
Nussbaum points us to the important work of James Heckman, and rightly insists that social science research has produced a broad range of encouraging interventions that might reduce crime without increasing incarceration. This is important research that I too hope to see more jurisdictions experiment with. But the extraordinary confidence Nussbaum exudes in these correctives seems misplaced. Her citation of Heckman’s work on the Perry Preschool program, for instance, simply fails to grapple with a wide range of scholarly criticisms of the efficacy preschool as a social investment. Preschool still of course has serious, scholarly champions. But the literature is mixed, and Nussbaum acts irresponsibly to suggest otherwise. She acts especially irresponsibly to suggest that opposition to universal preschool stems in large part from racism.
Philosophers like Nussbaum have much to contribute to ongoing debate over issues like incarceration and criminal justice. But just as social scientific positivists delegitimize themselves by refusing to engage seriously with normative questions, so too do moral philosophers delegitimize themselves by refusing to engage seriously with empirical research.
Conclusion
I have noted that it is always unnerving to find yourself disagreeing with Martha Nussbaum. This is especially the case in matters of classics exegesis. But no matter.
Nussbaum opens the book with an intriguing re-interpretation of the Oresteia. At the end of the cycle, the carnal, animalistic impulses of the Furies somehow morph into the gentle, judicious judgments of the Eumenides. The transition from Furies into “blessed ones” is representative of the evolution of justice from blood vengeance to the rule of law. Yet Nussbaum goes one step beyond this traditional reading, arguing that the Furies aren’t just forced to accept the constraints of law imposed by the civilized state around them. More than that, the Furies have fundamentally transformed their very nature. They no longer embody the primal impulse for retributive justice. They are now reason-giving and impartial, motivated not by anger, but by benevolence. As she puts it: “Aeschylus suggests that political justice does not just put a cage around anger, it fundamentally transforms it, from something hardly human, obsessive, bloodthirsty, to something human, accepting of reasons, calm, deliberate, and measured.”
This seems to me to go too far. It is true that Athena ends the cycle of blood-vengeance by institutionalizing a permanent body to dispense a new, procedural justice. Yet unlike Apollo, who scorns the ancient past, Athena seeks reconciliation with it. She knows that the Furies remain “the court of last appeal, the final blood avengers,” and she recognizes that their ancient passions cannot be excised; they must be built into the foundation of political justice. After initial resistance, the Furies agree to make their new home both within and beneath the city of Athens themselves. They become the Eumenides on Athena’s promise that they will continue to dispense their ancient justice, only now through the proper procedure.
It seems to me that the Furies, then, have not undergone a transformation in their fundamental essence. It remains their responsibility to oversee the people of Athens, and when man defies their justice, “their crushing hatred hits him, their implacable rage grinds him down to dust.” Vengeance and anger still constitute the most basic foundation of justice. While the new court of Athens is composed of wise and judicial citizens, Athena has literally built this system on top of the ancient structure of blood-vengeance. Athena’s new civic justice remains nourished and legitimized by the primal passions of an older age.
I think there is wisdom in Aeschylus’ teaching (as I have interpreted it). On my reading it is impossible to do away with the anger and retribution of ancient justice. Those impulses aren’t vices to be tamed, they remain the very foundation of our thinking about justice and desert.
2. Nussbaum’s emphasis on the “payback wish” misrepresents the strongest case for retributivism
Nussbaum’s critique of retributivism is grounded largely on her dismissal of the “payback wish.” By this, Nussbaum understands retributivism to be motivated primarily by an incoherent, futile belief that punishment will somehow restore cosmic balance to the universe. But of course, sophisticated retributivist theories never place too much value in a kind of schadenfreude—the sentiment conjured up by Nussbaum's “road of payback.”
Nor should retributivists be particularly troubled by Nussbaum’s insistence that such payback is “futile.” By this, Nussbaum means that the executors of retributive justice will never “get back” what they lost. The crime against them has been committed, and no punishment will restore what has been taken. That is all certainly the case. But it is also irrelevant. Sophisticated accounts don’t treat retribution as merely restorative. The original crime of course cannot be undone. But that’s not the point. Retributive anger is essentially other-regarding, not self-regarding. Retribution tracks deserved treatment; it has nothing to do with the fanciful wish to get something back. Retribution is not, as Nussbaum would have it, a futile exercise in self-satisfaction, it is a resonant principle of other-oriented justice.
This realization leads us to a much deeper problem with Nussbaum’s analysis. On her view, the central problem with anger and retribution is that they are “backward-looking.” True justice requires a transition from that backward-orientation toward the future. But what exactly is wrong with the kind of backward-lookingness she associates with retributivism? To see the limits of the view, let’s consider cases of deserved good-treatment. Acts of kindness or generosity trigger in the recipients certain reciprocal moral obligations. Those obligations aren’t grounded in a kind of abstract consideration of what will make the future go best. They are instead sensitive to real, morally significant acts taken in the past. The duties of gratitude, for example, are moral obligations that guide future conduct rooted in a consideration of what came before. This has nothing to do with producing cosmic harmony, as Nussbaum suggests. It is instead a simple recognition that moral desert can be rooted in the past and can nonetheless shape future-oriented obligations.
To take another example, consider the moral pull of the call for reparations for the descendants of American slaves. This particular issue is itself quite complex and deserving of a fuller treatment. But the case for such reparations is not most plausibly rooted in some general belief that greater redistribution will ex ante make things go best. Instead, the policy is attractive precisely because of the historic wrong it tracks, and because of the demands of deserved treatment those historic wrongs evoke.
Many more difficulties remain with Nussbaum’s critique of retributivism that can be adequately addressed here. I remain convinced that retribution is the basis of just punishment in large part because all the other alternatives seem to justify far more than is acceptable. For instance, if punishment is to be justified entirely on some account of what makes the future go best, it is difficult to understand the wrongness of punishing the innocent. Nussbaum does have some things to say on this point, but none that prove particularly compelling to me. But this broader point of dispute demands a more systematic treatment than I can provide here.
3. Nussbaum’s discussion of incarceration and the justice system is wholly inadequate
Perhaps the least satisfying section of Nussbaum’s book is her brief discussion of the American criminal justice system. America’s mass incarceration, on her view, stems directly from our incoherent retributivist impulses. She appends to this diagnosis an almost obligatory invocation of racism as a significant motivation in shaping America’s legal structure. I do not wish to argue that Nussbaum is wrong in this diagnosis of the American incarceral state. I wish merely to point out that her discussion is inadequate.
No serious, good-faith effort is made to engage with the suggestion that incarceration has substantially reduced crime and has produced significant improvements to social welfare. The tone of Nussbaum’s discussion here implies that such an empirical hypothesis is so absurd as to merit no serious consideration.
Nussbaum points us to the important work of James Heckman, and rightly insists that social science research has produced a broad range of encouraging interventions that might reduce crime without increasing incarceration. This is important research that I too hope to see more jurisdictions experiment with. But the extraordinary confidence Nussbaum exudes in these correctives seems misplaced. Her citation of Heckman’s work on the Perry Preschool program, for instance, simply fails to grapple with a wide range of scholarly criticisms of the efficacy preschool as a social investment. Preschool still of course has serious, scholarly champions. But the literature is mixed, and Nussbaum acts irresponsibly to suggest otherwise. She acts especially irresponsibly to suggest that opposition to universal preschool stems in large part from racism.
Philosophers like Nussbaum have much to contribute to ongoing debate over issues like incarceration and criminal justice. But just as social scientific positivists delegitimize themselves by refusing to engage seriously with normative questions, so too do moral philosophers delegitimize themselves by refusing to engage seriously with empirical research.
Conclusion
There is much to be admired about Martha Nussbaum’s important contribution to the debate over the moral basis of punishment. I have outlined a few objections which I take to be rather damaging of her overall argument. But any fair-minded reader should appreciate the book’s extraordinary philosophical depth and literary elegance. All things considered, however, Nussbaum’s critique of retributive justice and anger remains thoroughly unconvincing. Anger is not some unfortunate evolutionary relic to be done away with. While, as with all emotions, it must be balanced against other moral sentiments, anger remains an invaluable part of our moral vocabulary and thinking. As a professor of mine likes to remark, anger always entails an implicit claim about justice. The project of moral philosophy should be to excavate that claim, not to excise the emotion that produced it.
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