110 Comments

I don't see how this is a challenge for consequentialism. If there's a really good case that punishing families is going to lead to a lot better prevention, then maybe it's worth doing - but the kinds of crimes that have been hard to prevent are often ones where the criminal is estranged from their family, or has no family, and punishing the family is going to be extra ineffective in those cases.

If anything, it seems to me that retributivism opens the door much *more* to family punishment. Retributivism raises a question that consequentialism doesn't, namely the one about which entity it is right to take retribution out against. The most common answer in a modern liberal society is going to be the individual whose body is a continuant of the body that committed the crime, but if we ever develop Star Trek style teleportation, or if we are convinced of the possibility of a rehabilitated person really being a new person, then we might change our mind. Historically, retributivists probably actually endorsed the view that the family was the body that is relevant. There's nothing the least bit in tension with the core retributivist idea to say this, and so family punishment should be a core question for retributivism, in a way that it's unlikely to be for consequentialists, who can appeal to empirical facts about how much criminals care about their families to nip this in the bud.

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> but the kinds of crimes that have been hard to prevent are often ones where the criminal is estranged from their family, or has no family

This is false. The crimes that are hard to prevent frequently have the criminal relying on a family support network. It's remarkably hard to survive as a lone wolf.

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Retribution *bounds* punishment. Yes, it is just to do bad things to people who have done bad things. It re-establishes a kind of balance. It's probably fair even to say that it is good in a sense. But it is not obligatory, in general, and I would usually advocate forgiveness instead, unless other factors motivate retributive punishment.

But retribution absolutely is a *necessary,* though not really a sufficient, motive for punishment. This is very important. You can't execute a pickpocket for the sake of a more effective deterrent. It's unjust.

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Why does retribution only provide an upper bound, and not a lower bound too? I can't agree with an upper-bound-only way of thinking. Frequently we see crimes inadequately punished which cry out for justice, and it is very UNjust for millions to suffer criminality because judges are too squeamish to duly punish criminals.

But if retribution puts on bounds, presumably ever other rationale for punishment also provides upper and lower bounds. So what do we do when they are conflicting? It doesn't strike me as productive to have hard bounds.

Retribution is a good starting point, but there are other concerns too which may adjust the just punishment upwards or downwards. It would not be productive to execute pickpockets at present, but I can imagine societies, circumstances, and individuals where it would be. For instance, Bukele is acting with far more justice than his predecessors.

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It actually used to be standard to hang horse thieves. Partly because once stolen a man could ride away on one, thus reducing the probability of being caught, partly because a man deprived of his horse might be up a creek without a paddle.

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Right, this is the standard position I think. It’s ok to mete out a punishment if conditions 1) they deserve it and 2) it’s deterrent enough to be worth it, both hold. Granted, this position is purely utilitarian as a utilitarian should t care about condition 1, but even condition 1 may be defensible under rule utilitarianism.

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Indeed. Many forms of punishment are far too demanding for the punisher that, even if it would be okay to e.g. torture in some situations, it seems like it would be very permissible to not do so because of the psychological effects of the actions.

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Family punishment is incompatible with individualism, which—at least under modern conditions—is the best social system. Family punishment forces families, rather than individual people, to be the primary units of social agency. Families will decide what is to be done, producing less socially beneficial actions. Your family will be able to veto your plans, just as community groups now veto developers’ plans for the construction of housing.

By the way, the advocate of family punishment must specify how *extended* the “family” supposed to be. A consequentialist would say: the proper size of the unit for responsibility and punishment is that which makes for the best consequences overall, in the long run. And the likely answer is that the best sized unit is *a single person*.

Pursuing still further the direction from individualism to familialism, we find nationalism--the whole nation as "family."

(Question: if a more or less extended family were the chosen unit, what would happen to people without families?)

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And I think this is why it's weird to say retributivism rules out family punishment. A retributivist who thinks of families as the units of social agency will very strongly *endorse* family punishment. It's the individualism that's doing the work, not the retributivism.

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Indeed. The best arguments against family punishment are utilitarian. Obviously family plays an important role in shaping the actions of wrongdoers and bears some "responsibility". It's just not worth punishing (in most cases).

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It's quite with individualism as long as the actions an individual wants to pursue aren't crimes.

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Well no, because even if I never commit a crime, I get punished if my brother commits crimes. That's the anti-individualism bit.

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I was responding to someone warning of the dangers of families vetoing individual decisions.

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Aug 1, 2023·edited Aug 1, 2023

Re: "My challenge for readers: Propose any alternative to retributivism that precludes family punishment."

*Incapacitation* — another punishment rationale, distinct from retribution and deterrence — usually precludes family punishment. Incapacitation (e.g., incarceration) is broadly experienced as punishment. (True, some convicts prefer life on the inside.). Incapacitation usually prevents the convict from committing new crimes against innocent persons. (True, plenty of convicts commit new crimes against other convicts in prison; and some convicts can orchestrate, from the inside, new crimes against innocent persons on the outside.)

Family codes of vendetta might complicate the situation.

The premise is that incapacitation is conceptually distinct from retribution. Indeed, for example, fair duration of imprisonment to achieve retribution might well differ from optimal duration of imprisonment to achieve effective incapacitation.

Note: Incapacitation, unlike retribution and deterrence, might conceivably be imposed even before a person commits a crime, if the probability that the person will commit the crime, and the severity of the predicted crime, surpass some threshold. However, few people advocate preemptive incapacitation, which violates the principle that a person is innocent until she plans or commits a crime.

BTW, another rationale of punishment is *communicative justice,* which is supposed to express, 'This is how wrong the crime is.' Communicative punishment, too, seems to preclude family punishment.

PS: Although retribution and incapacitation generally preclude family punishment, they nonetheless may, and often do, cause indirect harm to innocent family members. For example, if a criminal is incarcerated, spouse and children might suffer substantial loss of income. Justice is a harsh virtue.

PPS: Lest I be misunderstood, please note that I don't oppose retribution, i.e., punishment to restore a balance! I'm merely pointing out a distinct punishment rationale, incapacitation, which, like retribution, generally precludes family punishment.

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I don't see how either communicative justice *or* retributivism *rules out* punishment of the family. Communicative justice in particular seems like it would *endorse* family punishment, because saying that something is so bad that we even punish your *family* is a way to communicate the badness to a greater degree. (Of course, communicative justice might rather endorse taking out a really big and expensive ad announcing how bad something is, rather than actually punishing anyone.)

I can see how a specially-tailored version of retributivism, where it is really important that the *individual* who did the specific crime be punished, might rule out punishing the family, but if you see the family as the unit, or alternatively think that a person who has "turned a new leaf" or been "born again" might count as a new person, then your version of retributivism is going to end up with different bounds of punishment.

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I remember reading about how in certain famous court cases (for instance, the Central Park 5) it seemed like a lot of people cared more that someone was punished for the crime than that the right person was punished. The justification for this seemed implicitly communicative, they really wanted to show how bad the crimes were by punishing someone, anyone.

In my view this seems like a major argument against communicative justice. It seems to violate other common standards of justice, like that only the guilty deserve punishment, and also is pretty shaky on utilitarian grounds. Also, it just seems profoundly insecure and narcissistic to me to have a strong need for society to acknowledge the badness of some crime that has been done to you.

It's also pretty easy for communicative justice to go off the rails. I remember reading about how some Australian Aborigines mourned their dead by going on violent rampages. I guess to them it served the communicative purpose of expressing their grief and how much the deceased meant to them. I am sure some of them would be horrified to discover that Americans do not go around beating the crap out of people whenever they lose a loved one, and that they would consider it proof that we do not love our family and friends in the same way that Aborigines do. But it seems pretty wasteful and cruel to me. As the (somewhat dated) saying goes, "If you want to send a message, use Western Union."

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What are you trying to communicate by punishing the family?

If the family played some active or grossly negligent role in the person commiting the crime then perhaps there is something there you want to deter.

But if they did not what message are you trying to send other then “don’t have kids and be paranoid about the ones you have because if one of them does something terrible we are going to punish you”. Not a good message.

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Those are all good questions, but I think they are challenges to the communication theory of punishment in general. If you want to communicate clearly, use words, because they can be precise about what you are trying to say. Punishment is very ambiguous about what exactly is being punished. Are you saying don’t rob a bank? Don’t rob a bank on a Tuesday? Don’t get caught robbing a bank? Don’t get money from a bank?

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In the case of the mentally ill incapacitation (asylums) to prevent crimes not yet committed is permissible. Or at least that’s an answer societies have had in the past and an ongoing debate (many people blame the closing of the asylums on much modern crime).

On the communicative justice front this is the entire concept behind “broken windows policing”. There is certainly an active debate on this topic but some believe that it works (Charles Murray just published an article on this) but it’s got its supporters. Is arresting someone for minor infractions “disproportionate”, yes, but it also reminds people you don’t get away with breaking the law.

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Isn't family punishment also supported by retributive justice? Generally the family could have done something to prevent, or at least lower the likelihood, of the crime. (You admit as much when you say that family punishment works as an incentive on the family.) Shouldn't they be punished (to a lesser extent, sure, since their crime is less serious) for not taking those actions?

Nor is this some crazy hypothetical. In fact, it was recently in the news that parents of school shooter Ethan Crumbley are going to trial for not stopping their son, and people seem quite happy with this. Granted their case seems more extreme than most, but the magnitude doesn't change the general principle.

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Also punishing family members is a form of retribution for the criminal himself if he cares about them.

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Basically this. If you want a criminal - or someone like Hitler, in an extreme case - to ‘suffer maximally’ as Bryan says, this will (usually) necessitate harm done to their loved ones. Cartels have figured this out! In fact, this is why it works so well as a deterrent, because the only thing worse than getting your head sawed off is watching it happen to your wife, kids, or parents.

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If we're just talking "to a lesser extent", then the family is always punished when their loved one is hauled away from them for a few years by the justice system.

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I'm liking because it's true but I mostly reject the logic. There is something to shaming people who are bad parents (especially when the children are still children) and maybe even punishing in very extreme examples (the parents were super abusive or whatever).

But most of the time this would lead to hyper controlling paranoid parents that make life worse, and it would probably be bad for TFR. Every kid you have is a potential liability?

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Need to give this some thoughts to make a proper response

What I currently have to say:

I am utilitarian, libertarian, pro freedom: and very cautious around big violations of natural negative rights, not necessarily because i think it’s intrinsically wrong, but because history to me show that we humans are very very good at rationalizing

My current thoughts on family punishment: (assume that the family has done nothing wrong and havnt contributed to the wrongdoers actions.)

In hypothetical i am fine with this but it seems to have far reaching consequences socially and culturally: it creates a culture of vengeance and escalation that leads to past centuries family violence and triads. Because its rare for a family to just take the punishment laying down, they tend to retaliate

It also seems to encourage fascism, communism, and terrible ideologies based around collectivism, even when just intended for small families

(Because a individual got enlargened to a family, that then says things about a community, that says things about etc bigger things)

The other problem of the top of my head is that the information gained and learned from family punishment is worse then individual punishment

As tons of attempted implemented taxes shows historically, people rarely take costs imposed on them lying down. They try to wiggle around it, manipulate information and rumors, and etc. im not an expert on family punishment so this is not as sure, but seems apriori likely.

Im also fairly certain that family punishment leads to reduced individuality and expression, leads to large coverups of individual acts and crimes, creates a culture of surveillance and paranoia, and more

So there are quite a lot of hurdles to overcome for it to be a good idea.

Of course, if your defenition of utility isnt just preference maximation, but something like idunno, communism, unity, minimal crime, something where you look and zoom in on ONE THING ONLY; then family punishment is very food and efficient.

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If punishment is meted out by the state, the family is unlikely to retaliate against such an overwhelming opponent.

> It also seems to encourage fascism, communism, and terrible ideologies based around collectivism, even when just intended for small families

What is the evidence for this? My understanding is that it got displaced before such ideologies rose up. Perhaps communism would have never taken over if the families of revolutionaries were punished.

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On Point1: fair point: you have to get to that point somehow though, and the state is from my utilitarian perspective bad, swingy, and monopoly like in whose utility/preferences it promotes, and tends to pointlessly sacrafice a lot if utility in tragedy of the common scenarios for a few

So the state being able to do it is not a good idea imo

Point 2, on history;

Havnt read enough specific history (i read big strokes, big idea history, macro history) to show a concrete counterexample point by point, but the reading i have done and personal experiences as well seem to point to social revolutions and witch hunts becoming obsessed with family punishment, and that the family punishment escelates further and further into collectivism

My impressions of Nazism, china, and some (much less dramatic and tragic, nowhere near yhe terribleness of the earlier two) personal life gives me this strong appearance and intuition

An abstract example:

Person A has an opinion or have done something society X doesnt like. Society X has a family punishment culture, which means that person A and person A’s family ( let us call them FA) have incentives to not get punished.

In order to avoid the punishment, A and FA can try to change A’s behaviour; FA are not allseeing people, and will compensate by being more harsh and more worried. One way to control anothers behaviour is to control their social life and envirement. This means FA and A has an incentive to affect A’s social life, and work place.

Since its an imperfect tool cause A is an individual, mistakes are bound to be made and crimes will likely still happen. Incentives to avoid punishment happen again;

This process also instills a learned mindset and behavior of “to avoid a collective punishment against our collective, our collective needs to control and punish the individual offender, cause their behaviour affects far more then themself”

Which becomes more and more reinforced very easily, and cultural incentives gives status to whoever appear most competent and prosocial for the in-group. And the easiest way to appear prosocial is to fight against an outside threat, which means the ingroup grows larger and more uniform in response.

Combine this with signaling escalation and it seems to strongly encourage a collectivist leaning culture

This isnt an concrete example and thus i understand if you dont believe it. Do you have historical examples to the contrary of my point?

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Bryan is very much fine with creating this culture of family vendettas. You should have read his past writings, essentially calling for family-based vigilantism as punishment for crime. I see his bloodlust for such revenge fantasies is still alive and well after all these years.

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Ok i must have missed that, i thought he was against collectevist punishment? Could you gimme links?

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The entirety of Bryan's "revenge is cool" writings I've seen are from the 2000s, which is why I thought he outgrew this stuff. But apparently not.

Anyway, here are a couple. I remember another one where he mentioned the "Taken" movie as proof people think family-based revenge is great, but couldn't find it. But you get the gist.

https://www.econlib.org/archives/2006/10/see_saw_iii_if.html

https://www.econlib.org/archives/2007/07/whats_wrong_wit_5.html

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Think i inow how to find them now: i google “bryan caplan revenge” and similar topics

Found this old one https://betonit.substack.com/p/whats_wrong_wit_5html

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Yep. There are at least two other similar pieces we left out. Guy was very big into revenge and vigilantism in the 2000s. Looks like he still is.

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Empirical research on criminality generally finds that the probability of getting caught is much more important in deterring crime than the magnitude of the punishment. Familial punishment is basically just another way to increase magnitude, but for severe crimes already punished with severe punishments, we’re already probably at the point where the curve is flattening out. Same can be said for torture as punishment. I think utilitarians are not totally unreasonable to view intensifying punishment as a mostly fruitless direction to go in for deterrence purposes.

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There are a few things for which family punishment would also increase the probability of getting caught - there's a reason why family punishment is common in response to defection of spies and military agents in a war.

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I agree that probability of getting caught is important, but that kind of assumes at least meaningful punishment.

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The problem for consequentialism is always that potential consequences are infinite and you cannot be sure you have enumerated them all. In the family punishment case, it seems pretty easy to come up with enough bad second order consequences to nix it, but as a consequentialist, I have to admit the better result in general is if everyone just adopts a rule of “don’t punish non-offenders” than trying to calculate.

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I believe true justice is based on restoration. The ideal punishment for a criminal is to have him make all his victims whole again. Make him as productive as possible and then extract all the profits for reparations until either the victims are repaid in full (plus interest) or the criminal dies.

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I think being against it is perfectly justifiable under consequentialist philosophies, considering this.

> What’s clear is that when rulers enforce family punishments, the ruled shiver with terror. Don’t tell me these tactics don’t work.

People don't actually like shivering with terror so consequentialism is more against it than implied by naive local cost/benefit.

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Also, note the irony that Caplan argues that it 'obviously' works, when he literally starts his post with an example of it *not* working!

The Sippenhaft was instituted *before* the final assassination attempt (https://en.wikipedia.org/wiki/Sippenhaft#Nazi_Germany), and yet the plotters went ahead with the attempt anyway (itself infamously just one of a breathtaking number of assassination plots against Hitler https://en.wikipedia.org/wiki/List_of_assassination_attempts_on_Adolf_Hitler ). Thus, it failed. It did not deter what Caplan claims it obviously deters. Further, the quote notwithstanding, the Stauffenbergs were not extirpated (eg both his wife and brother survived the war), making the quote even more misleading. That aside, aside from not deterring the attack in question, it's questionable if it deterred any subsequent attacks either - Hitler spent the rest of his life (less than 1 year) hiding in bunkers with contact restricted to ever fewer people until he killed himself, so it's unclear there was any real benefit in terms of reducing assassination attempts, and if there was, it was probably that the plot was used as an excuse for wholesale preventive purges of anyone and everyone who might be a little suspect (most of whom had done nothing); which is not an endorsement of collective punishment's efficacy in deterrence, to say the least.

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It's hard to believe that, under consequentialism, e.g. killing multiple people would be better than the murderer shivering in terror. So the consequences would outweigh the benefits.

In case you think the murderer's family shivering in terror somehow outweighs it, the murderer's family won't shiver in terror until their family member commits the crime. Also, since we are primarily dealing with a thought experiment as an argument against consequentialism, just imagine they don't shiver in terror necessarily but it does provide deterrence. Basically, they're slightly sociopathic (or if you don't like that term, they're robotic about their emotions) but they still care about their family. It still doesn't seem permissible to imprison their family.

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I am saying that the entire population, even nonmurdering parts, will shiver with terror, which is a strike against the proposal. In a hypothetical world where people aren't emotionally affected by the threat of death it would not be, but I do not think conclusions from that thought-experimental world would transfer to ours.

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Interesting example of familial punishment in a modern (non-totalitarian?) regime: Israel sometimes destroys the homes of Palestinian terrorists and their families after attacks which cause thr death of civillians.

However, the effectivness of this approach in dettering terror has been disputed by research and is negated by the Palestinian Authority giving a stipend and rebuilding assistance to the families of "martyrs" and prisoners.

Some on the Israeli hard right have been calling for harsher punishments such as famillial deportation to Gaza or some other neighbouring state.

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“If I’m going to get punished for my brother’s crimes, I’d better make sure he obeys the law.”

Actually, this is a potential good reason against familial punishment. A society where your family is your STAVKA agent would be a terrible society to live in. We even give spouses the right to avoid testimony against each other for this reason. This fails the cost/benefit analysis.

I can buy the case for collective punishment, but its complicated and rare.

"Because I am a retributivist."

I consider most immigrants, in fact nearly all low IQ people in my polity, to be serious criminals by virtue of their existence. They will over the course of their lives collect vastly more in tax dollars than they pay in, something that necessitates higher taxes on myself. This ends up being very large sums of money in many cases. Since time is money, this is basically like they are committing a significant proportional murder against me. In most cases they support these policies so they are hardly innocent.

I could site other reasons, like the fact that they vote for things that harm me greatly or other externalities.

The bottom line is they deserve severe moral punishment. It's utilitarianism that stops it. How would I bring that punishment about? What would the cost of doing so be? They deserve it, but I can't construct a reasonable path from here to there that makes the world a better place that is within my own power.

"Though once you’ve ended the war and got Hitler in chains, the morally best approach is to make him maximally suffer - and claim he died of a heart attack. The repetitional harm will be trivial - and his millions of victims deserve no less."

This is the problem though. If the person you want to surrender doesn't credibly believe you will abide by the terms once in their possession then they have no reason to surrender, and hence whatever gain you hoped to have via the surrender is lost. You could lie and maybe get away with it, but a lie is harder to pull off than the truth and you may not get away with it (lowering future creditability).

In normie morality we call this "revenge". The desire to punish even if it causes harm.

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This consequentialist bites the bullet and affirms familial punishment. The taboo against it is a modern, western, parochial one, not some self evidently obvious truth of reason. If a credible threat to punish the family of an offender’s family deters 100% of such offenses then on what basis do you condemn that society? It doesn’t actually institute familial punishment, ex hypothesi. We certainly accept similar arguments in the case of nuclear deterrence, for example. Why should such reasons not apply on a smaller scale?

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Just what I was thinking. "Sounds like how military deterrence works to prevent many potential wars." Also, family members *are* de facto punished under our supposedly individualist, retributivist system, via the seizure of property which potentially makes their lives vastly worse.

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I had also the same thought re: seizure of property. I had refrained from sharing, however, as one could argue that technically it does not constitute collective punishment since you are only taking property from the offender (or the offender's estate) before it has lawfully passed to his heirs.

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An obvious answer to the challenge at the end.

Any ethic with the deontological rule "don't punish people", that is don't take actions with the goal (instrumentally or terminally) of decreasing someone's welfare.

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The mafia threatens the families of non-criminals in order to steal from people who would otherwise not be criminals. I would expect criminals to care a lot less if you harmed their families, since criminals are themselves more likely to harm their family members than non-criminals

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Just to be clear - you endorse torture as acceptable punishment for heinous crimes?

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