Of Pinochet and MP3s

The blogisphere provides us with some good examples illustrating the two approachs to crime an punishment -- the utilitarian social-good maximizing model and the "moral justice" model where punishment is intended to be, well, punitive. The good thing is, in the majority of cases, those two models are aligned -- the jailing of Worldcom's ex-CEO Ebbers, for instance. That is both a desirable outcome from a utilitarian point of view (future CEOs are warned by Ebber's example into staying honest, thus reducing future incidence of fraud) and from a "moral justice" point of view (the &^^&%&* had it coming.) But there are many cases where the two models differ substantially on what our course of action should be. I subscribe primarily to the utilitarian model, but belive (paradoxically enough) that sometimes there is a place for the "moral justice" model. The bottom line is, it is important to society that justice is consistantly applied, and seen to be consistantly applied. This is ultimately a utilitarian good, even if in certain instances the punishment does not lead to a direct decrease in a particular crime.

This is why, despite the fact that I would be a card-carrying utilitarian if only I can find somebody to issue me with a card, I believe Pinochet should be punished even if though the direct utilitarian argument for jailing him is weak (he is old, and could not reoffend; strongman dictators are megalomanics unlikely to stay their hand at the prospect of international justice decades down the line). For someone as evil as Pinochet, justice must be seen to be done. Our society functions on the assumption that crimes would be punished. The trust in that assumption would be damaged if we let Pinochet live out his remaining days in ease. However, I disagree with Mark Kleiman in calling this punishment 'retribution'. It seems kind of unhealthy to encourage victims' families to salve their wound through the suffering of the perpetrators. Even if we torture Pinochet for years and then execute him in the most painful manner possible, that would not compensate the families for their loss.

From one of the most heinous crimes possible, we go to the most frivolous -- contravening copyright laws by downloading music online. In this case, I agree completely with Matt Yglesias' utilitarian argument -- the utility derived from free downloads is several time greater than the damage done to the recording industry in lost sales. It simply does not make sense to keep downloads illegal to protect the recording industry at the expense of the general public. The industry's "moral justice" argument falls flat because the concept of copyright was originally granted to the music industry for utilitarian reasons -- that is, to encourage the creation and dissemination of music. We know that the creation of music is not discouraged by downloading (the bottom 3/4 of artists benefit from downloading as it gets more people to listen to their music). And the dissemination of music is greatly aided. Like countless other industries, the recording industry has been hurt by advances in technology. To try and cling to the advantage they had prior to this technological advance should be recognized as ugly rent-seeking behavior rather than protecting their "rights".

The way I try to square the circle and reconcile those two models of justice is to think back to my conception of morality. Those of you who have been with this blog from the beginning will remember that I believe in morality, but not moral absolutism. To me, a good moral principle is one that will give the best utilitarian result when followed assiduously. Morality and the language of rights is necessary because it frees us from the otherwise-crushing burden evaluating utilitarian claims on a case-by-case basis, and provides a compelling rhetorical framework for us to place our behavior within. For instance, pre-marital sex used to be a much more damaging behavior prior to the advent of contraceptives. There is a utilitarian case for curbing this behavior, and I find it unsurprising that it is accompanied by a contemporary morality that condemns it as immoral. With the advent of reliable contraceptives, and the consequent lowering of the social costs of pre-marital sex, I find it equally unsurprising that the moral disapprobation gradually lessened. This is how it should be. The problem arises when people try to cling on to the belief that their morality is absolute -- that somehow premarital sex was and thus will always be immoral, or that it isn't and thus was never immoral.

What does this mean for us when we consider Pinochet and MP3s? Well, I hazard to speak for us all in saying that we all still consider murder and torture utterly egregious both from an utilitarian and moral point of view. Thus Pinochet should be punished and seen to be punished. But with the MP3s, there is a disconnect between the best utilitarian outcome and the rhetoric of rights currently wielded by the recording companies and backed by the law. The moral assumptions (intellectual property is equivalent to physical property) that underpins those laws no longer give the best utilitarian outcome when followed assiduously. It is time to reconsider them.

*This post underwent substantial changes from when it was first posted as I re-read Mark Kleiman's post on Pinochet and retribution. I know this is bad blog etiquette (bletiquette? blogiquette?). Oh well.