Interesting reponses by Ollivia
in the comment section below. I want to respond to some of the things they've said, but think it warrants a post, rather than a comment.
To take Ollivia's comments, she writes: "you give too much credit to the human spirit, peter. most criminals, i'd submit, don't give a shit if their community is angry with them for committing a crime. if informal strictures worked, we shouldn’t have criminals or at least very few, as those same disincentives that you suggest as punishment would work as deterrents."
This is a good point, and I suspect I may give too much credit to the human spirit. Still, there's a few things that can be said in my defence. For one, I think it matters to the criminal if their
community (the group of people they regularly interact with, their friends, family, and so on) is angry with them. The trouble is that, in most cases, you probably have no such anger from this community but, rather, from other communities that may or may not be geographically in the same place. Criminals probably have friends who laud their criminality (in some cases), and if, say, the local Moose Lodge is furious about the crimes, that won't do much to worry the criminal.
Second, the complaint about informal strictures is just as easily applied to formal ones, since we still have crimes. We might rephrase the comment like this: "if formal strictures worked, we shouldn't have criminals or at least very few, as those [formal disincentives in law] would work as deterrents." Neither is perfect but, given the ridiculous opportunities for crime faced by each of us every day (like when I pass by some store that has an outdoor stand with no one watching it), it's a shock that crime doesn't occur much more frequently. I think it is more likely that informal punishments provide the better deterrent to formal punishment. I suspect that most criminals don't think they'll be caught by the police, even if they probably do worry that their friends and neighbours might find out.
I have a paper on gossip that you know about that argues something like this. I guess it might actually fit in neatly with this paper as a second part, or as an expansion on types of informal punishment and enforcement. But this paper is about proportionality, not deterrence or punishment, strictly speaking. I haven't yet decided whether we should abandon proportionality since it might get overwhelmed by concerns like this one.
To move to Rob's points, he writes: "One thing that struck me is that you say, according to the retributivist, there is "some abstract conception of the "right" amount of punishment..." At the same time, isn't informal punishment as much an abstract concept on punishment? It appears that we have a clashing of values between the retributivist and the proportionalist on what is the right amount of punishment."
I may not have been clear enough in my original post. There is a difference between what the standards we look to will be. In the case of the retributivist, she will look to an abstract conception that is a yardstick applicable both to the amount of punishment in this case, and the amount of punishment relative to other crimes. In informal punishment, each of us judge this yardstick ourselves, and the yardstick might differ for you and me and so on. (I suspect that there will be norms or conventions about proportionate informal response, but we needn't refer to that here). The standard, that is, is much, much lower since we don't have to appeal to an external standard, but judge of it ourselves.
This doesn't elide the bit about having some standard, so your point stands. I need, instead, to say that the standard is much weaker in the case of informal punishment, but there is a problem of standards at any rate.
Then Rob writes: "How do we measure remorse and embarrassment? People show remorse and embarrassment differently. You can't measure it. You can't say a person cried x times, went to confession, received fewer phone calls and E-Mail messages by friends, tarnished reputation, etc. and determinately say that the person has shown enough remorse for effective informal punishment. People like measurement. They like definition, even if defining abstract terms is philosophically difficult."
Nice. I'm not as skeptical about the immeasurability of psychological states as you seem to be, Rob, but I doubt the practical ability of juries, judges, and so on, to get this bit right. We may cling to a "good enough" standard, abandoning any hope of getting it exactly right. Which, I think, is fine. For my purposes, we need only say that this is, in fact, a burden the individual imposes on herself, and should be considered, provided it's practicable. You say it isn't. I think that it may be, to some extent. Which just means that I think the standard you imply ("determinately") is too strict, and should be weakened significantly.
Then Rob raises an objection that Ollivia mentioned to me separately, and which, I think, may be the most damning of all for my thesis.
Writes Rob: "Because of this, I think defining punishment, either formal or informal, is a community exercise. By collectively defining formal punishment, the community is saying that this is the punishment we want to inflict. People are more at ease with formal punishment because it is easier to define, and they believe that it is equally applied. This is probably where people's feelings toward the rule of law manifest.
Formal punishment must always be the benchmark and the safeguard. So I disagree with you that we can move more crimes off the formal punishment list. I suppose that should come as no surprise to you."
No, it's no surprise. But, boy, is this a good defence of formal punishments, rule of law, and explicit lists of wrongful acts and the punishments people are to expect. I don't have a very good response to it, I'm afraid, but I do have a few ideas. Here they are: On the former, I think that people have a tendency to exaggerate the capriciousness of their neighbours. We do, in general, follow conventions and norms without formal enforcement, and I have a lurking suspicion that those norms include norms of appropriate punishment. So violators of norms can anticipate informal punishment, but that punishment will be, generally, restricted by norms which rule over that.
Now if we sort of agree with that, then we have reason to say that punishment is collectively defined in both the formal and informal cases. There is no difference here, except for an explicit process with words written on paper. For instance, we don't have written rules of fashion (well, we do, but not everyone looks at those magazines) but notice how quickly trends spread, or how quickly people wear particular things in particular contexts. I think there is a general norm for most of us, and particular norms for subgroups. So the jocks wear something special, so do the goths, and smart kids. There is
a standard, even if it goes unsaid and unwritten.
But you're right about this: People do seem to be more at ease with the idea of explicit rules, rather than with the idea of unwritten rules. I wonder, however, whether this is just a fact about reflection on the idea, rather than a fact about in practice being more disconcerted about it. When we stop to think about norms, rules, punishments, and so on, we are probably more inclined to say that we should have these all written down. But, in our daily lives, we probably assent to informal punishment, and participate in it, much more often than we recognize. Parents, for instance, act as informal enforcement mechanisms with respect to their children, and we seem to be all right with this, even though they have the extraordinary power of limiting freedom (grounding), expropriating property (selling your baseball cards), uprooting you (we're moving to Texas because your mother got a job there), prohibiting speech (don't say "dude," that's improper), deciding your dress (wear a tie, we're going to Aunt Betty's), limiting your relationships (you can't play with Jenny anymore), and on and on. If any formal mechanism had that power, we would rightly revolt. But we don't fuss all that much, in general, about this parental power, even if we do sometimes meddle by way of laws against "excessive" corporal punishment, and things of that sort.
Will any other relationships resemble the special case of the dictatorship of the parents? Probably not. This probably means that the example I give is a poor one, since nothing else will be like it. But maybe you think there are more "parent-like" situations out there. If you do think that, then really think about how uncomfortable you are with the power these people yield in determining the appropriate amount of punishment, and in actually punishing people.