Linda Radzik’s new bookFootnote 1 is truly excellent. It is resolute, inviting, very well written, and extremely timely. In it, Radzik and her commentators deal with very important and oddly neglected issues. The book is divided into three parts. The first part contains Radzik’s Descartes Lectures, delivered at the Tilburg Center for Moral Philosophy, Epistemology and Philosophy of Science in 2018. The second part contains commentaries by Christopher Bennett, Glen Pettigrove, and George Sher. The third part contains Radzik’s responses. As these are all formidable scholars, it is no surprise that they have produced a volume of such high quality. What perhaps is surprising is the sheer amount of substance that is contained in this relatively short book. Readers will find no fluff here; trite as it may sound, this book really is obligatory reading for those working in punishment theory and related fields.

For whatever it is worth, I happen to wholeheartedly agree with central and foundational aspects of Radzik’s approach. I particularly welcome Radzik’s focus on “social punishment”, by which she means, as she recognizes (3), roughly what I have meant by “pre-institutional punishment”. More than fifteen years ago, on the very first page of my Punishment and Retribution, I referred to the “manifoldness of punishment”—to the fact that punishment can occur in many different contexts—as “rather obvious”, and I confessed that I found the fact that this suggestion was even contentious “disconcerting”.Footnote 2

Alas, things have not changed much—and at any rate not sufficiently—in these fifteen years. The importance of non-state punishment is routinely dismissed—sometimes by denying its very existence.Footnote 3 This is so despite the slow drip of influential authors recognizing the point on which Radzik and I wholeheartedly agree, and who stress the importance of examining these different contexts. For example, in his magisterial “Introduction” to H.L.A. Hart’s Punishment and Responsibility, John Gardner explicitly claims not to share Hart’s “conceptual intuition” whereby state punishment is somehow paradigmatic, and he further confesses to not even knowing “where it gets its appeal”.Footnote 4 Similarly, Douglas Husak has recently asserted that “the insistence that the only real punishments are state punishments […] has done a disservice to criminal theory in myriad ways”.Footnote 5 Paying attention to punishment’s manifestations in different contexts is of course not to deny that there are differences between these contexts, or to deny that state punishment deserves “special attention mainly because it raises additional questions on top of those raised by the practice of punishment in general”.Footnote 6 Interestingly, even scholars who claim to restrict their attention to state punishment often (unwittingly?) illustrate their views by presenting examples from non-state contexts.Footnote 7

Radzik’s approach is not only welcome given its methodological good sense, but also because in novel and interesting ways she focuses specially on the sort of punishments that new technologies—above all the internet, with its rushed mob trials fueled by Facebook, Instagram, Tik-Tok, Twitter, and so on—facilitate. As Radzik reports, and as anyone living in this planet has witnessed, these mob trials often result in grotesquely disproportionate punishments, and they seldom afford their victims any real opportunity to defend themselves. The accusation, however wild or unsupported, or indeed deliberately fabricated, often is the punishment.

Despite my many substantial agreements with Radzik, in what follows I will raise some points of disagreement. This I do not only because in our profession critical engagement really is the most genuine form of praise, but also because I think that focusing on these various contentious issues is likely to advance the important debates that Radzik and her commentators discuss in this volume.

By way of framing my discussion, I describe a dinner party I attended long ago. This is exactly the sort of example that those who believe that punishment is mostly (or exclusively) a matter of state punishment may (claim to) find irrelevant, but that Radzik and her commentators should find useful.Footnote 8 The dinner took place at the home of a colleague, and there were, I think, about eight people present—all but one academics. One of these academics showed up with a companion who was much younger than he was, was rather vulgar and ignorant, obviously lacking in wit, mental agility, charm, and conspicuously uneducated. I do not wish to intimate that academics are especially charming or witty, but this particular person really appeared out of place at this particular gathering. That alone need not have been a problem: surely we have all been out of place sometime. The problem was that, taking advantage of her cluelessness (and helplessness), this academic spent the evening humiliating her, cruelly making fun of her malapropisms, her limited (and often clumsy) word choices, her naivete, etc. Nauseated by the spectacle, and thinking that the circumstances afforded me no better options, I tried to be particularly unfriendly to the abusive man. I want to believe that I did this in civilized and even subtle ways—making my intentions too obvious would have risked further humiliating the poor victim, etc. I thus engaged in no direct confrontation—in no direct anything. In fact, probably no one at the gathering was aware that I was actually trying to do anything in particular, even if those who knew me better may have found me to be uncharacteristically caustic or cold. Be that as it may, I think that I succeeded in making this cruel and abusive man feel bad (although, again, he could not have been sure of my intentions). I myself had no doubt whatsoever as to what I was trying to do: I was trying to punish this cruel man, to make him suffer. I thought that he, a moral agent, was doing something wrong, that he had no justification or excuse for doing it, that the world would be a better place if something happened to him that would “somehow offset” his cruelty, and so on with all the elements in my definition of punishment.Footnote 9

Let us stipulate that I succeeded in making this man suffer. Such success would entail that I punished him: I was not indicting, censuring, protesting, lamenting, or advancing any social goal.Footnote 10 Of course, this does not show that my behavior was justified, or that I was right in thinking that I had no better options available: elucidating those issues is not important for current purposes. What is important is to show how differently Radzik and I may react to examples of this sort. Given our common interest in non-state punishments, our possibly different reactions may be particularly telling. And I would like to suggest that at least some of the differences between Radizk and me in dealing with cases such as these are the result of what I would call, for lack of a better term, two anxieties I detect in Radzik’s position. I will address these in order.

For all our global methodological affinities, I am not entirely sure that Radzik can agree that I was engaged in punishing the cruel man at this dinner. The most obvious conceptual reason for this is that while Radzik insightfully criticizes aspects of the traditional justifications of punishment, she nonetheless strives to preserve one prominent element found in them: that the punisher must have some “authority”, and I certainly did not have any authority that evening. To her credit, Radzik recognizes that the authority condition “presents [her] with a problem” (18). After surveying the alternatives—on the one side theorists who because of their allegiance to the authorization condition deny the existence of non-state punishment, and on the other scholars (like me) who simply “reject the authorization condition”—Radzik confesses that she wants “to have it both ways” (19).

Wanting to have it both ways, Radzik is forced to expend considerable energy in reconceptualizing “authority” to somehow fit her aims. Despite the many merits of Radzik’s efforts, I find this move ultimately unsuccessful. One noteworthy problem is that at times Radzik appears to conflate “authority” with “standing”, although these are importantly different matters (20). But let us leave that conflation (if that is what it is) aside. Radzik’s central move in trying to have it both ways is to suggest that authority need not be conceived as asymmetrical or hierarchical, and that, thus, social equals have the requisite authority to punish each other. Think, however, about the cruel man at the dinner whose behavior I found so despicable. Was he my “social equal”? Did he have more “power” than I did?Footnote 11 I do not know. I was much earlier in my career than he was—does that matter? He was probably better-connected and more well-off than I was—does that matter? But why should any of it matter? I was doing whatever I was doing whether or not I was authorized (or had the standing) to do so, and thus independently of whether or not we were social equals, etc. If I was not authorized or if I lacked the standing to do what I did, then I could be criticized for doing it, but that criticism does not change what I was doing. (Even if I was authorized or had standing to do what I did, I could of course be criticized for being a busybody or for myriad other reasons—but these criticisms are beside the point here.)

As Bennett correctly points out, Radzik is mainly interested in “interpersonal rather than intrapersonal” phenomena (76). But, again, why limit our gaze in this way? Why limit cases of informal punishments to those involving interpersonal interactions amongst social equals? Trying to highlight the pointlessness of these convoluted, contorted efforts to turn authority into something else, in my 2005 book I offered a thought experiment in which a slave in ancient Rome thought a certain action of his master was morally wrong, and who, as a response, cooked a meal that would make his master feel sick, etc.Footnote 12 By my lights, this slave was punishing his master (even though he was not his social equal, etc.). Radzik and I should be on the same team on this. But Radzik’s odd desire to preserve the authority condition found in typical accounts of punishment complicates things for her. The slave example highlights how social ranks—authority, standing, etc.—are orthogonal to the elucidation of whether something is punishment or not. Even if, as Pettigrove suggests, and as a statistical matter, typically “punishment is meted out by someone who holds at least as much power as the one punished, usually more”, little conceptually interesting follows from this observation (127). People with either lower (or unknown) levels of power punish each other on a regular basis.

Clinging to the authority condition, however, Radzik appears to join the other team. For example, Radzik endorses the “intuition” that “mob aggression against a criminal is properly viewed as assault rather than punishment” (10). Why “rather than”? If the mob is attacking a criminal because of what she did (as opposed to, say, the color of her skin, her religion, her sexual orientation, etc.), then the question as to whether or not the mob has authority or standing is, again, besides the point: the mob is punishing the (perceived) criminal (even if also assaulting her). The way to oppose vigilantism is not to deny that it is vigilantism—but to show that it is wrong. Similarly, saying that something is punishment is not to thereby endorse or justify it. Moreover, it seems to me that online mobs that dish out wildly disproportionate punishments, and toward which Radzik so fruitfully steers our attention, paradigmatically lack any authority (and sometimes even standing) to do what they are doing. It is difficult for Radzik to consistently affirm that these online mobs are punishing (perceived) wrongdoers while denying that old-fashioned mobs are doing the same. We need definitions, and any definition of anything at all eo ipso excludes other things: defining an apple is to immediately generate the class of non-apples, etc. But the attractiveness of the methodological move that Radzik and I share is that it promotes—or at least permits—a certain broadening of our horizons in trying to better understand punishment, qua phenomenon. Radzik is, in my opinion, very compelling when she suggests that there is much to be gained by seeing online lynchings as informal social punishments. But that compelling view is in tension with the authority requirement.

As it turns out, Radzik ends up in the oddest of positions: forced to reprise a famous gimmicky move concerning the standard definition of punishment. Discussing the flaws of the standard definition of punishment, I criticized Hart for almost grudgingly (and insufficiently) acknowledging the existence of “sub-standard” forms of punishment. (I quipped that he did not even deign calling then “non-standard”.)Footnote 13 The standard form for Hart is, of course, state punishment, inflicted by an authority, and so on. Surprisingly, Radzik does something very similar: she denies that unauthorized agents can punish, but, realizing that some of these things “are similar enough to punishments” (23), she, just like Hart, downgrades them, although she “flag[s] them as marginal cases” (22–23).

Radzik needs none of these moves. She does not need to “have it both ways”. She is much better off simply jettisoning the authority condition, since, after all, that strategy is much better aligned with her overall laudable goals. To cling to something like the authority condition seems to me to be at odds with Radzik’s desire to deal with informal phenomena. It would be quite a result if Radzik—again: of all people, given her general strategy—could not admit that I was attempting to punish the cruel man at the dinner (or would have to deem this a “marginal” case). If, as I would hope, Radzik agrees that punishment is what I was attempting that evening, then she creates unnecessary problems for herself by having to explain how it was that I had (and, I guess, how it was that I was supposed to know that I had) authority over this man. Here an important agreement between Bennett and myself deserves mention. While at times Bennett and I appear to emphasize different things (he, the uniqueness of punishment—or at least its difference from rebukes; I, its manifoldness),Footnote 14 we both have doubts about Radzik’s treatment of the authority condition. We are both skeptical of Radzik’s strategy of trying to show that the phenomena she is interested in can somehow be made to fit the standard definition of punishment. Radzik- again, of all people - should have had an easier path: simply abandoning that standard definition (as, say, I have done).

The other anxiety I detect in Radzik’s position is a widespread form of anti-retributivism and it relates to the problematic (yet absolutely intimate) relationship between punishment and suffering. Whatever else we may seek to accomplish when we punish, we seek to inflict suffering on a (perceived) wrongdoer, as a response to her wrongdoing. The word “suffering” need not convey images of torture chambers or to be otherwise construed in overly melodramatic ways: it means to capture countless things that, in various degrees, punishees do not want done to them, that they find disagreeable, unpleasant, and so on. In normal circumstances, to deliberately inflict suffering on others is evidently not a nice thing to do. And yet, I certainly was trying to inflict suffering on the cruel man at the dinner, because I thought that his behavior called for it.

Even if I am right in that the fact of wrongdoing may ultimately justify the deliberate infliction of suffering (as I think it sometimes does), it is perfectly natural to feel uneasy about this. And yet I think that Radzik (like many others) overreacts to this default disagreeability of inflicting suffering. She appears to buy wholesale the “standard objection” to “pure” retributivism whereby it is “repugnant” and “bloodthirsty” (26). After introducing the charge of bloodthirstiness, Radzik repeats it several times in the space of a mere few pages. Alas, she never really explains what is bloodthirsty (or repugnant, etc.) in the retributivist position. She does mention that retributivists find “the suffering of other human beings intrinsically desirable”, and she pretty much leaves it at that: QED—retributivists are bloodthirsty. When she considers the obvious retributivist reply whereby what is good is deserved suffering, and not suffering simpliciter, Radzik cavalierly dismisses the move: “I hardly see how this helps” (26).

I do not think that I was bloodthirsty—even metaphorically—at the dinner, although I indeed wanted the cruel man to suffer simply because I thought he deserved it. (Notice, again, that it could be that in the final analysis what I did at the dinner was wrong, or not even justified, without that entailing that I was bloodthirsty.) I certainly would have much preferred that the cruel man had not humiliated his companion (etc.), so that the occasion for inflicting deserved suffering on him would have never arisen. And it would please me if the cruel man has never behaved like this again. But I (rightly or wrongly) thought that there simply was no opportunity for me to have a conversation with him in which I could have attempted to get him to understand the wrongness of his behavior (etc.). So, my options (as I saw them—again, rightly or wrongly) were simply to either do nothing, or to do something like what I did: to be studiously (though somehow stealthily) unfriendly, caustic, and unkind. I was not, given how I assessed my options, directly interested in reforming him, in teaching him a lesson, in deterring him, in protesting his behavior, and so on. I just wanted him to suffer (although I would not have minded if this suffering may have eventually taught the cruel man lessons, etc.). And this is the essence of retributivism: that even absent all other considerations (of the sort consequentialists care about) the infliction of deserved suffering can be justified in and of itself.

Radzik too quickly dismisses the possible retributivist defense against the charge of bloodthirstiness that emphasizes that “she [the retributivist] only values the suffering of the guilty [i.e., deserved suffering]” (26). For, Radzik believes that even with this qualification in mind, the retributivist would problematically justify “punishment even if punishing makes neither the victim, nor the punisher, nor anyone else any better off” (26). Leave aside the fact that Radzik has not shown that when punishment is inflicted only because it is deserved no one is better off: even if neither the cruel man nor the victim was better off, I, or some of the other guests who may have perhaps had an inkling as to what I was doing, or the world, may have been better off.Footnote 15 Leave aside, also, Radzik’s smuggling of the consequentialist worldview here.

The important point is that even if you think that despite the repugnance of my colleague’s behavior, I misbehaved at the dinner, to suggest—as Radzik does—that the fact I behaved as I did because I thought my colleague deserved it is irrelevant (i.e., not helpful at all) is too quick. For imagine another dinner in which I behave in exactly the same way vis-à-vis a colleague as I did in the actual dinner, except that in this one I do not think that he deserves such treatment. I see no way of denying that in this second (imaginary) dinner my behavior is awful and cruel. Again, admitting a difference between my inflicting suffering on the cruel man (such as I did) because I thought he deserved it, and my inflicting it gratuitously, does not at all prove that I was justified in behaving as I did. But it does show that desert makes a difference.

Radzik suggests that retributivists tend to be moved by “malice or spite” (30), and she even suggests that the horrors depicted in Hieronymus Bosch’s The Garden of Earthly Delight are really in close proximity to retributivism (26–27, fn. 7). Interestingly, I chose a scene from Bosch’s masterpiece for the cover of my Rethinking Punishment, and I suspect that my reaction to Bosch’s masterpiece is very similar to Radzik’s. But we part company when she asserts that the exquisitely grotesque scenes Bosch depicts are somehow inseparable from retributivism. Contrast the behavior of the abusive colleague at the dinner against the behavior of Nazi butchers who sadistically assassinated many members of my family. While I would have wanted them punished as they deserved (and, in extremis, perhaps even absent any other considerations), I would not have endorsed any of the punishments depicted in Bosch’s famous painting. Moreover, even if I thought that these Nazis somehow deserved to go through life straddling a giant knife, I would not have thought it right to ever inflict that particular punishment on anyone—and I think that no decent person would have thought it so. Needless to say, I do not think I was moved by malice or spite at the dinner.

Being a retributivist, in my view, commits you to a certain axiological position: that the moral valence of suffering—whose default value is admittedly negative—can change, and that desert can (even absent other considerations) alter that valence. Retributivism, in my view, does not commit you to an incessant (and insane) campaign to dish out all the deserved suffering you possibly could, or even to particularly punitive policies or attitudes. Evidently, mine is not the only version of retributivism on offer. But, differences aside, I just do not know any contemporary retributivist whom I would characterize as bloodthirsty (or malicious, etc.). Moreover, many contemporary retributivists would admit that the fact that some suffering is deserved rarely constitutes a sufficient reason for punishment. The point on which they (rightly) insist—and which anti-retributivists deny—is that the fact that a certain suffering is deserved provides a reason for inflicting it, even if that reason is by itself rarely sufficient. (This is the point, too, that no consequentialist justification of punishment can accept.)

Interestingly, if Radzik wanted to “have it both ways” regarding authority, she much more wants to have it both ways regarding the specific role that suffering plays in the justification of punishment. Radzik correctly criticizes many mixed justifications of punishment for their failure to take the reality of suffering seriously. Thus, she chides many communicative justifications for dismissing or evading “the reality of the ugly side [of punishment]” (36).Footnote 16 So, Radzik suggests that censure or communication may not succeed in fully capturing the ugly side—the suffering—of punishment. But I am not sure her approach fares much better than other “mixed justifications”.Footnote 17 Radzik claims that “punishment—not just criminal punishment but social punishment—is a form of coercion” (37). Radzik simply replaces the “censure” that she correctly sees as insufficient in capturing punishment’s ugly side with “coercion” (not noticing that coercion is similarly insufficient).

Before briefly sketching why Radzik’s “coercion” is as insufficient as “censure”, I would like to suggest that the claim that punishment is a form of coercion is itself false—and that it should be recognized as false precisely by someone like Radzik, who is interested in informal, non-state forms of punishment. Surely there are occasions in which getting wrongdoers to understand the wrongness of what they did (via our communicating with them) is both feasible and a very good thing to do. The same holds for coercing some wrongdoers into behaving in certain ways. None of this denies that there are cases, too, in which the mere fact that a wrongdoer gets to suffer to the extent he deserves is justified absent other considerations. That is the “ugly” and deeply complicated aspect of punishment worth our attention: that sometimes justice must be achieved via the infliction of suffering. One such case, I submit, is the dinner described earlier. I was not interested in sending any messages or in coercing the cruel man (again, partly because I did not think that it was a feasible thing to pursue, given the circumstances of the case). And it is perfectly clear to me that I was nonetheless punishing him, and that I may have been justified.

The falsity of the claim aside, I am unsure of Radzik’s notion of “coercion”. The coercion she has in mind appears to be related to her view that what wrongdoers deserve is “a limitation of liberty” (38). But I did not attempt to limit the cruel man’s liberty, nor did I think he deserved that. Again, let us put that aside. Radzik believes she needs to “supplement” her view that wrongdoers deserve to have their liberty limited with a “rights-forfeiture defense of punishment”. On Radzik’s view, then, wrongdoers appear to lose a right “against being subjected to coercion” (39); she claims that what wrongdoers deserve is “less liberty [in general]” or, a bit more precisely, “less freedom from manipulation” (37).

As Sher points out, this right “is one that few theorists have acknowledged, and one that seems highly dubious on its merits” (103).Footnote 18 But things get even more complicated for Radzik. She does not want to claim that the person who (allegedly) deservingly forfeits the right not be coerced can now be coerced (or manipulated) in whatever way we choose. Rather, such person deservingly forfeits “only [protections against] manipulation toward certain ends” (39). So, it is not that the wrongdoer loses this mysterious right tout court: what she loses seems to be an even more mysterious right to object when the general mysterious right-not-to-be-manipulated (that she somehow does not globally forfeit) is violated in certain specific ways.

This creates at least two problems for Radzik, both rather typical of other mixed justifications of punishment (including those she insightfully criticizes). First, if some goals are so important that they allow us to violate peoples’ rights, then Radzik owes us a story as to why they should not be pursued without any limitation. Why, that is, should we be limited by the wrongdoer’s desert? (I am not denying that such story is possible—I am only pointing out that Radzik owes us that much.) Second, it is not at all clear how Radzik’s own mixed justification of punishment does a better job of engaging with the reality of the “ugly side” of punishment—with suffering—than do other approaches. As it turns out, for Radzik punishment is reduced to the pursuit of some extraordinarily worthy goals against which the punishee has deservingly forfeited her right to object (if pursued against her will). I of course understand that if punishers pursue these goals against the wishes of the punishee, the latter may find that disagreeable, or unpleasant, etc. But, still, this does not strike me as capturing very well the “ugly side” of punishment—not better, in any event, than those other approaches Radzik criticizes.

In closing, I find that much more important than whether or not my misgivings above are warranted is the fact that Radzik’s book trenchantly invites these types of discussions. Determining which aspects of punishment (and its justification) may hold across the variegated contexts in which punishment can occur, and which are context-specific, is a very fertile—and oddly neglected—area of investigation. Unquestionably, Radzik’s book is a major and welcome contribution in this regard (and in others). We are indeed indebted to Radzik and to her commentators.