Undeserved Happiness or Good, and Deserved Suffering or Harm: A Problem With My "Justification of Punishment"
Rick Garlikov

My justification of punishment depends in part on the idea that it is unfair to let someone have enjoyments or other benefits they unnecessarily, unjustifiably, and inexcusably deprived others of having or which derive from acts they did which were wrong.  In cases of theft and the enjoyment of, or benefit from, what was taken or stolen, that is fairly clear.  That might be a car or bicycle or an idea from which they then gain success (whether in enjoyment, grades, money, recognition, power, or any other benefits) by claiming it as their own.  One does not deserve the pleasure from stolen fruit which others worked hard to produce or earn.  That is theft of their labor and theft of the benefits of their labor.  [There are other kinds of undeserved pleasures that should also not be unnecessarily allowed, or at least not encouraged, as in taking pleasure in the undeserved pain, suffering, or misfortune of others, even though one is not causing or directly causing that pain, suffering, or misfortune, as in enjoying watching fights in boxing, hockey, spectacular accidents in automobile racing or even just in nature, bone jarring tackles in football, Roman gladiator confrontations with ferocious animals, the unnecessary or even accidental humiliation of others or, as some people believe, in enjoying meat from animals raised under terrible conditions because those were the most economical ways to 'farm' them.  But I wish to consider here only those sorts of undeserved pleasures or benefits which are those one has unnecessarily and unjustifiably deprived others from having.]

I think there is no problem with the idea that one should not benefit, or be permitted to benefit, from the theft of other people's labor, at least not where theft means that the thing taken was taken without permission and where the owner would not want it taken or accept its being taken.  The case is not as clear when permission is given but basically coerced, as in extortion, or as in agreements involving slave wages or essentially any unfair wage because the person working for it is in need of money they cannot otherwise earn, through no fault of the hiring employer, and has to settle for what s/he can get.  A wage can also be unfair even if freely accepted, if circumstances later make that labor far more valuable than either party knew at the time but the additional gain is not fairly distributed.  It is also not always clear what constitute a fair agreement or fair compensation when a host of different kinds of factors are involved in the success of a group activity that involves different kinds of skills, effort, time, etc.  But the basic principle that one should not be allowed to enjoy what one has wrongfully taken from others by way of what is clearly theft (or even extortion), I think, is a reasonable and unproblematic one.

The problematic issue is whether one can be allowed to have joys or benefits which derive from inexcusable wrongdoing (as in writing a best-seller and movie blockbuster based on one's being a serial killer) or which one has unjustifiably, unnecessarily, and inexcusably deprived others of even though it is not the same joy or benefit one has deprived them of, and even though it is not joy or benefit that comes specifically from the harm one has done others.  In other words regarding the latter, for example, am I justifiably allowed to enjoy food if I unjustifiably and inexcusably deprive you of food even though it is not then your food that I am eating?  It seems not only wrong to deprive you unnecessarily, unjustifiably, and inexcusably of something, but it seems worse and also unfair in a different way for me to deprive you in that way of something similar which I myself have or will have.  E.g., suppose one sibling purposefully prevents the other from being able to watch or enjoy a television show the second one wants to watch, in order just to torment his/her sibling.  Is it not right for the parent then to deprive the perpetrator from watching or enjoy at least one that he or she wants to watch -- as a punishment, not just to "teach a lesson" that the first child should already know?  Isn't that simply fair in some way? 

Or suppose there are two job openings and you are seeking to secure one of them.  If I unnecessarily, unjustifiably, and inexcusably deprive you of the one you seek, that would be wrong in itself because it deprives you of deserved benefit.  That is true whether I seek either of those job openings for myself or not.  And, by the principle of unfairness of theft above, it would also be wrong by way of unfairness if I were less deserving of the job you wanted but got it because I kept you from it.  In essence, I would have stolen your rightful job from you, stolen the fruit of your labor and skills that prepared you for that job. 

But it also seems to me to be wrong if I were to seek and acquire, not the job I kept you from having, but the other one.  Perhaps even any job I want, whether related to the company you were seeking to work for or not.  If I unnecessarily, inexcusably, and unjustifiably unfairly do not allow you the work you want, is it fair or right for me to have the work I want, even if it is totally different work from which I deprived you?  My problem is that I do not know how to justify that, particularly not from the principle, which is the part of my general ethical principle that says we have a prima facie obligation to create the most good, least evil, or greatest balance of good over evil for the greatest number of deserving people.  There are other ethical considerations that can prevent that from being an actual obligation, and the ethical principle in its entirety is:

An act is right if and only if, of any act open to the agent to do, its intrinsic or natural consequences, apart from any extrinsic unfair rewards or punishments, bring about the greatest good (or the least evil, or the greatest balance of good over evil) for the greatest number of deserving people, most reasonably and fairly distributed, as long as no rights are violated, as long as the act does not try to inflict needless harm on undeserving people, as long as the act does not needlessly risk harm in a reckless, negligent, heedless, or irresponsible manner, and as long as the act and its consequences are fair or reasonable to expect of the agent.* Rights have to be justified or explained or demonstrated; not just anything called a right is actually a right. Further, the amount of goodness created or evil prevented may, in some cases, legitimately override a right that a lesser amount of good created or evil prevented may not. Overriding a right is not the same as violating a right.

*What is fair and reasonable to expect of an agent: 
It is fair or reasonable for people to do things at little risk or cost to themselves that bring great benefit, prevent great harm, or create a much greater balance of benefit over harm, to others. Apart from cases where an agent has some special higher obligation that he has assumed or incurred, as the risk or cost to the agent increases and/or the benefit to others decreases, an agent is less obligated to perform the act. At some point along these scales, the obligation ceases altogether, though the act may be commendable or "saintly" to voluntarily perform (that is, it may be "over and above the call of duty"). At other points, the act may be so unfair to the agent -- may be so self-sacrificing for the agent to perform, even if voluntary, and/or of so little benefit to deserving others, that it would be wrong. (Not every act of sacrifice or martyrdom is all right or acceptable.) [Introduction to Ethics, http://www.akat.com/MeaningOfLove/introeth.htm]

I am concerned here with whether that principle, as it is written, justifies depriving people of benefits of the same kind (or any commensurate kind) which they have unnecessarily, unjustifiably, and inexcusably deprived others from having, or of benefits in any way derived from inexcusable wrongdoing.  If not, is there any other justification for the belief people should not be permitted to benefit from inexcusable wrongdoing or from having inexcusably and unjustifiably deprived others of comparable benefits?  If not, is the belief itself simply intuitively or basically right? Or is it even a correct or reasonable prima facie belief/principle at all?

It seems to me that it is reasonable that creating the most good, least harm, or greatest balance of good over harm for the greatest number of deserving people is a correct prima facie principle, and is actually obligatory when it also meets the other conditions in the principle, of being fair to everyone, not risking of unnecessary harm, etc.  For shorthand, let me call it the principle of the obligation to do the most deserved and fairly distributed good.  I also believe it entails doing no unnecessary undeserved harm to anyone (along, with the rest of the principle of doing no unfair harm or putting them at unfair risk, etc.) since doing unnecessary and undeserved harm is not doing the most deserved good or the least harm.  In other words, one could do less harm by doing nothing unnecessarily bad to another person, and it is not unfair to expect someone to do nothing.  That is why there is more of an obligation to refrain from harm than to have to do positive good, if doing positive good might be taxing or costly or even unfair to expect of an agent.  Doing nothing unnecessarily harmful has no cost and is not unfair to expect of people.  However, I am not sure whether the prima facie requirement to do the most deserved and fairly distributed good entails minimizing, reducing, or eliminating the most undeserved good of the sorts in question; i.e., good that is undeserved because it is good that one has unjustifiably and inexcusably deprived or prevented others from having, or good which one has derived from inexcusable wrongdoing of any sort.

Now, I do not believe that we have an obligation to prevent innocent people from having good which is not strictly deserved, 'deserved' in the sense of having been earned in some way.  If someone is lucky and has good fortune come his/her way through no particular desert or merit of their own, there can be circumstances where that is acceptable, I believe, particularly if it does not take something away from someone deserving of it or who needs it far more than the person who gets it by luck and who could be, and should be, given it instead.  Suppose for example that someone recovers miraculously and spontaneously from a serious illness, simply because of good luck, not because of some healthful regimen s/he devised for her/himself.  That is a good thing even if others were to die from the disease -- others perhaps who are equally good people or maybe even better people.  Mother Nature is not under the obligation to do the most deserved good fairly distributed, though it might be nice if she were, and if it led to much poetic justice and if it meant karma is true and a real, natural thing.  But the requirement to do the most deserved good fairly distributed certainly does not entail punishing or executing people who have miraculously survived diseases or accidental injuries other people did not, at least as long as they did not cause the accident.  I do not think that being in a non-negligent accident which costs someone loss of kidney function obligates one to donate a kidney to him/her.  It might be that negligently causing the accident could potentially obligate one to do that.  But even if negligence might bring about such an obligation, the problem is that some negligent acts are more culpable or blameworthy, less excusable, understandable, or forgivable, and/or perhaps more irresponsible than others.  Some are instead more accidental or understandable in a way that could have happened to anyone even though in hindsight they were wrongly risky.  For example, suppose that eating a sandwich while driving, or listening to the car radio causes one to lose focus on the road ahead for just a second or two at just the wrong time, should that require giving up a kidney to the accident victim?  If there is a clear cut answer to that, I don't know what it is.

But the question I am interested in here is whether the obligation to do the most deserved good, fairly distributed, entails depriving someone of good they deprived others of but which is not the specific good they are then enjoying for themselves instead, as in the job example above or as in being allowed to live and have some joys even though one has unnecessarily, unjustifiably, and inexcusably deprived another of his or her life and any possibility then of having such joys?  I do not believe the principle of minimizing undeserved good in such cases can be derived from the principle of maximizing deserved good.  Whether it can be derived from that coupled with the specific notions of fairness given as qualifying conditions in the principle or not, I also do not know.  It seems to me to be right and fair to deprive someone of goods commensurate with those they unjustifiably and inexcusably deprived someone else.  But I am not confident the principle as articulated implies that.  If not, then if it is right to reduce, minimize, or eliminate undeserved good of a sort one has unjustifiably and inexcusably deprived others of, that needs to be added to the principle.  My concern is that is an ad hoc principle just to justify punishment, particularly capital punishment.  I just wish I had a better basis for it than some sort of intuition coupled with examples such as the food, television, and job example.