* [Please note that the following is NOT an argument which can, in its present form, be applied to criminal justice systems as a function of the State; nor is this my intention with this article. The following argument as is, is a philosophical one. Also please note that in this article I briefly discuss the “irrational man”; however I will not cover the particulars of “willful irrationality”. For that is a topic for another article. But I do wish it to be understood that I am not suggesting that an irrational man is somehow absolved of his responsibility to reason; that he somehow cannot help his logically flawed thinking.  Though this may be true on a psychological or neurological level in some instances, the majority of those who think and act irrationally do so, I submit, of their own unfettered will.]

Consider:

Punishment serves no practical purpose.  And because it therefore serves no practical purpose it serves no rational purpose. And because it serves no rational purpose, it serves no moral purpose. In which case, punishment is merely meaningless violence.

Being violence, then, and absent any relevant efficacy, punishment is merely the infliction of injury and pain for its own sake; that is, violence for no other reason than to be violent; violence for violence’s sake, period. And in this way, punishment is more synonymous with revenge, as revenge serves no reconciliatory nor rehabilitative purpose whatsoever, by definition.

But one may object to such a description and evaluation of punishment on the basis that punishment is a necessary and logical consequence of violating a given ethical standard (upon which legal codes are based). Thus, the idea commonly assumed is that punishment is a means of redressing an act of ethical trespass.

This begs the question(s): What is the moral reference for the ethical standard? What precisely is it which the ethical standard seeks to affirm as Good and protect as Sactosanct? Certainly the ethical standard cannot be, itself, the moral reference; for this is a contradiction, and eliminates any practical value the ethical standard might hold for anything–or anyone, to be precise–outside of it.

Now, let’s take a moment to carefully discuss the idea of an ethical standard (e.g. “the law”) as its own moral reference, because understanding the logical failure of this idea is extremely important. Even today there are many people who believe that human beings follow laws, whatever and wherever they may be (religion, society, or other cooperatives) for the sake of laws, which always marginalizes humanity, eventually leading to its destruction.

For example, if an ethical standard says that thou shalt do X because X is good for the ethical standard–that is, doing X is good because the standard (the Law) is good (again, the ethical standard as its own moral reference)–we find ourselves faced with two insurmountable rational flaws (the latter proceeding from the former):

1. Doing X is good for the ethical standard, which dictates the doing of X solely because doing X is good for the standard, which, being the moral reference, is already good, even in the absence of doing X. Put more simply, doing X is good for the standard, which as the moral reference is already good, and yet it still commands the doing of X.  Do you see the redundancy? One does X in order to affirm the command (the standard…the “law”) to do X, which is already good even absent the actual doing of X (the actual following of/obedience to the command), making the doing of X morally and practically irrelevant. Further, there is no relevant difference between the doing of X and the command to do X. It goes something like this: One is commanded to do X, which one does soley to affirm the command, because it is its own moral reference, and the command says to do X, which one does soley to affirm the command, because it is its own moral reference, and the command says to do X, which one does…and so on and so forth. Doing X then = the command to do X (the standard, the law). So X, the act = X, the command. The command, bring its own moral reference, is utterly in service to itself. There is thus no practical way to apply the ethical standard for any rational or moral purpose other than to simply repeat the command of the standard. Which is to say that there is no rational or moral purpose of the ethical standard at all.
2. The circular nature and redundancy of such a dichotomy (the ethical standard equaling the moral reference) cancels out the standard, rendering it completely obsolete to the volitional agent (man).  Or, on the other hand, one could argue that the ethical standard, being circular whereby it infinitely folds back on itself, is absolute, and thus nullifies any awareness of one’s own individual, autonomous existence, because such an awareness of such existence contradicts the absolute (infinite) nature of the ethical standard which is also its own moral reference. Which is to say that man is rendered completely obsolete by the ethical standard. In either case, whether the ethical standard is rendered obsolete or man is, man and the ethical standard (when it is its own moral reference) are mutually exclusive.

*

So, it is impossible for man to appeal to the ethical standard as its own moral reference, because by becoming its own moral reference it utterly excludes itself from the frame of reference of the human individual (his Self) who thus cannot then appeal to it in any measure at all, nullifying all arguments that the ethical standard is its own moral reference. 

So then, if the ethical standard cannot be its own moral reference, what is the moral reference?

I submit that the only rational moral reference (that to which it answers and which it affirms) is the volitional agent; whose volitional and self-aware existence gives it any meaning at all. And by “volitional agent” I mean: the human individual. The affirmation of the goodness of the individual and the promotion of his right to own and pursue his singular existence is the sole purpose of any ethical standard.

Thus, the ethical standard has no actual value in and of itself.  It only has value in that it affirms and promotes people.

Okay, but what does this have to do with punishment?

Well, there is nothing of punishment then which can be rationally implied or intended by the standard. You cannot punish someone for violating an ethical, and by extension, legal, standard which has no moral value in and of itself. Because the moral reference, not the ethical standard, is what is actually violated.

Now, here’s the crux.

Therefore, the ethical standard is established not to punish the unrighteous individual, but to protect and promote the righteous one. Not to punish the guilty, but to protect and promote the innocent.

But, one may be inclined to ask, if righteous and innocent people are what is actually violated, cannot the unrighteous and guilty be punished for their violations?

The answer is no, and the problem is punishment qua punishment.

You see, individuals, being the moral reference for ethical standards, are not affirmed through punishment, but through promotion and protection (ostensibly through the establishment of the ethical standard–the law). Punishment, which is applied following a violation, does neither.  For only two things fundamentally promote and protect human individuals, the moral reference: reason and restraint. (“Restraint”, as in the neutralization of those who violate others. And by “neutralization” I don’t necessarily mean “death”, but a neutralization of their ability to threaten individuals by some manner of restraint, which can mean death, but not necessarily so.) Neither of these things has anything to do with punishment.

Let me explain.

The rational man who has by some means violated the ethical standard–which is to say, violated his fellow man–and in doing so become unjust (the “rational unjust”) can be shown by reason his error; and will, being rational, concede it, rendering punishment of no use. You see, his obedience to reason is the affirmation and refuge of the innocent, and the validation of the efficacy and truth of the ethical standard, and its moral reference, the individual. The innocent and the just are protected by reason, not punishment. To punish the man who has conceded the evil of his actions serves no purpose other than to torment him; to violate him, making hypocrites out of those who dole out punishment in service to “justice”.

Now, the irrational man who has violated the ethical standard and thus its moral reference cannot (or will not, which, practically speaking, is the same thing) be receptive to reason–to rationally consistent arguments–and thus cannot concede it, which also renders punishment moot. For the irrational man cannot apprehend the point of, or the justification for, punishment, because any such point or justification, to be moral, reasonable,  and non-hypocritical, would need to serve a purpose, and a purpose demands a rational explication which the irrational man cannot concede. Which again means that the innocent and the just are not protected by punishment. Nor are they, in this instance, protected, obviously, by reason. For the unrighteous irrational man who has acted unjustly cannot, again by definition, be reasoned with, and therefore there is no point in punishing him; for punishment can serve no rehabilitative, habilitative, or reconciliatory purpose, since the irrational man cannot apprehend the reason for the punishment in the first place. The innocent and the righteous must therefore be protected from the unrighteous irrational man via the restraining of the unrighteous irrational man’s ability to violate individuals.

And this restraining of irrational, unrighteous, immoral men who violate the ethical standard–which means to violate the moral reference, which means to violate individual human beings–is not punishment, but prevention.