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Barbara Fried is plainly correct that our penal polices are predicated on some inchoate views about freedom and blameworthiness.
Yet what she calls our “40-year blame fest” is actually a 2,000-year blame fest, one that Friedrich Nietzsche accurately identified with the triumph of Christianity in the late Roman Empire. Here is how he puts it in one of his last works, Twilight of the Idols:
Wherever responsibilities are sought, it is usually the instinct of wanting to judge and punish which is at work. . . . the doctrine of the will has been invented essentially for the purpose of punishment, that is, because one wanted to impute guilt. The entire old psychology, the psychology of the will, was conditioned by the fact that its originators, the priests at the head of ancient communities, wanted to create for themselves the right to punish—or wanted to create this right for God. Men were considered ‘free’ so that they might be judged and punished—so that they might become guilty: consequently, every act had to be considered as willed, and the origin of every act had to be considered as lying within the consciousness. . . . Christianity is a metaphysics of the hangman.
The '40-year blame fest' is actually a 2,000-year blame fest that began with the triumph of Christianity.
The compatibilist variations on the traditional Christian metaphysics of the hangman—all of which leave blame, guilt, and punishment largely intact, as long as we do what we desire, or identify with our motives, or reflectively endorse them, and so on—are, in the long view, just minor variations on the basic theme. It is an error to think that the work of professional philosophers in just the last 40 years says anything especially revealing about penal policy. There is nothing I can find in that literature that explains, for example, the extravagantly punitive character of American criminal justice in recent decades. For example, compatibilists and incompatibilists alike can agree with Michelle Alexander, who argues in The New Jim Crow (2010) that much of our penal policy is a legacy of the end of de jure segregation and the need to manage a large group of African Americans who were otherwise economic and social outcasts from the system.
But what could replace the Christian metaphysics of the hangman? Nietzsche’s Zarathustra proposes the following: “‘Enemy’ you shall say, but not ‘villain’; ‘sick’ you shall say, but not ‘scoundrel’; ‘fool’ you shall say, but not ‘sinner.’” The discarded concepts—villain, scoundrel, and sinner—are all ones that require free will and responsibility sufficient to license blame, while the substitute concepts—enemy, sick, and fool—merely describe a person’s condition or character without supposing anything about his responsibility for being in that condition or having that character.
Fried evinces some sympathy for such a conceptual revolution, but a longstanding commitment of penal policy in liberal societies—namely, to punish actual bad deeds, not simply bad thoughts or character—would have to be sacrificed if we went down that road. Deeds may be evidence of condition or character, but it is the bad (“sick” or “foolish”) condition or character that society has reason to restrain on this alternative view. Some skeptical incompatibilists, such as Derk Pereboom, explicitly agree that this is one consequence of their view.
In practice, the Christian metaphysics of the hangman may be preferable to the penal policy of a society committed to remedying the bad character of bad persons.
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