On the ethics of public shaming & digital mob justice

I wrote a post for the New Statesman on using public shaming and digital “mob justice” – even when aimed at those people we consider to be wrong. I’m unconvinced of public shaming as a tactic, in terms of “justice” – since one would hope that enforcing justice is itself considered in moral terms; that we don’t assume moral immunity because we’re responding to an injustice, but rather maintaining morality even while maintaining justice – in an unjust and often horrible world.

I don’t doubt public shaming is effective – but efficacy must be measured alongside other perhaps equally effective, but more moral responses and so on. My concern is that we can’t control how others respond and this is especially telling when original offences – say making a racist joke – is less bad than responses – calls for raping the offender.

There’s a lot to focus on, but this currently is my position regarding public shaming. It doesn’t mean we never act, only act better.

My favourite definition of liberalism

Joel Feinberg, in his stunning Harm to Others (Volume 1 of his four volume The Moral Limits of the Criminal Law), provides a definition of liberalism I can strongly identify with.

We can define liberalism in respect to the subject matter of this work as the view that the harm and offense principles, duly clarified and qualified, between them exhaust the class of morally relevant reasons for criminal prohibitions. Paternalistic and moralistic considerations, when introduced as support for penal legislation, have no weight at all. (p. 14)

Feinberg then spends the next few thousand pages, over the course of four books, defending this view, with his usual collection of nuance, topical examples and thoughtfulness.

I don’t often associate with labels or principles – but, if forced to, I’d called myself a liberal in this, specific sense; it would only be of the Feinberg variety (which is a kind of modern, refined Millian take).

Feingberg doesn’t think criminal law is or should be entirely premised on “harm” as Mill and most others understand it; but he doesn’t think it should be based on other things either that are common, such as offence, immorality (loosely defined), and so on. He wants substanial proof that an act is actually harmful and in a significant way, before asking for criminal prosecution; indeed, even then, Feinberg says we should look for alternatives to prosecution and incarceration, if such alternatives exist and are demonstrably more effective.

We shouldn’t be defaulting to criminal responses and punishment, since we do that too often and can do too much and hurt too many. Indeed, as Feinberg highlights, this could itself be immoral: a good example is criminalising marijuana (and indeed most drugs) possession, which creates more harm as a response than the initial crime.

Punishment and criminal HIV infection

A recent case in SA raised some questions for me about justice and stigma, and how – in some cases, like HIV – the two can’t be easily separated. That they relate at all was surprising enough.

In my latest at Big Think, I try to outline some dimensions some might be overlooking in their need to see “justice done”.

It’s interesting to note how often people clamour for justice, for something to be done, when a situation arises and yet, how the demand for justice is its own downfall. Or rather unmitigated hysteria. For example, we know that criminalising sex work and drugs – at the very least marijuana – has little basis in reason, but plenty of basis in popularity. As Plato hinted at, laws in democracies are made to be popular not right.

But when justice becomes synonymous with revenge, with knee-jerk moralistic action – rather than thought-out, evidence-based approaches that will help everyone in the society, that will reduce suffering – then we’re no longer talking about justice. We’re talking about mob mentality.

I’m reminded of a powerful scene in The West Wing where – no spoilers – a character’s child is harmed in some way by bad people. The character trolls another in saying they should revise whether capital punishment should be nation-wide and mandatory (for certain crimes). The second character points out that what the other man will do as a father, versus what he should do as a servant of the people, are in conflict; the law is there to be the voice of the latter, for the benefit of all, not a tool to benefit the heightened emotions of a grief-stricken father. What use is law when its wielded by the loudest, the strongest, the most grief-stricken?

This is one of the reasons I consider capital punishment to be immoral – to some degree – since it has no retraction possibility; it’s always closing the door on backtracking our possible mistakes. This doesn’t mean I think capital punishment is the worst punishment – I think, along with John Stuart Mill, that (life) imprisonment can be “a living tomb”, especially as we know reports out of places like Guantanamo, as the incredible Molly Crabapple showed.

Anyway, justice as always is complicated and we mustn’t let our desire for it overshadow its actual purpose in being effective.

Opposing homosexuality (in France)

Since 18 May, same-sex marriage has been legal in France. Despite the rather obvious nature for why you should support it, many still oppose it.

From the New York Times:

Thousands of French marched on Sunday, France’s Mother’s Day, to protest the recent legalization of gay marriage. Despite initial worries, the demonstration was largely peaceful, with the police estimating that about 150,000 people took part.

150,000. That’s quite a bit.

Of course, the actual number of those who really think or oppose gay marriage might be less. But then we might have the lazy homophobes who didn’t attend or were away. Or who killed themselves on the Notre Dame altar. [Read more...]