Third-party punishment
This is the third installment in a series on the retributive theory of justice. The first installment broadly described the criminal justice concept of retribution. The second installment discussed the status drive as an evolutionary underpinning for retributive theory. This installment covers the development of third-party punishment as a further evolutionary basis for retributive theory.
The boy was whining to his dad for a toy, and the dad was getting upset. I have a memory of watching this play out in line with my mom at the grocery store. I wasn’t much older than the whining boy. Suddenly, the dad hit the little boy, open-handed and very hard, in the chest. The boy collapsed and started crying, and the dad dragged him off. I was scared, but I also wanted to grab the nearest solid object and work the dad over. I didn’t do anything, of course, because I was a kid myself, but the instinct I had to hit the dad was powerful. I suspect you have felt that instinct yourself. It is the human instinct for third-party punishment.
There are a few systems for controlling behavior through punishment that have evolved in humans. First-party punishment is the punishment we give ourselves when we know we have done wrong. It is our guilty conscience. Second-party punishment is when a direct victim retaliates against the person who has wronged him. Third-party punishment is when the punisher is not the direct victim, but is punishing on behalf of the victim or on behalf of the group. The retributive theory in criminal justice relies on third-party punishment.
To put it a different way, first party punishment is conscience. Second-party punishment is retaliation. Third-party punishment is retribution.
Third-party punishment, it appears, is uniquely human. Animals, even social animals like apes, have not evolved third-party punishment in the way that humans use it. It is also a human universal. Third-party punishment has been observed in every human society ever studied.
Though third-party punishment is ubiquitous, it is somewhat confusing from an evolutionary perspective. As a general rule, traits evolve in humans only when individual benefit outweighs individual cost. A person administering third-party punishment receives no direct individual benefit. He is also incurring, sometimes extreme, individual costs. He is putting himself at risk of retaliation from the person he is punishing. He is also risking ostracization from the group if he is unjustly punishing the wrongdoer. Yet, third-party punishment has evolved. The prevailing theory about why, despite the uneven tradeoff for individuals, is based on ideas of group evolution. Human societies have evolved as large-scale social organizations. Survival of the fittest applies to individuals, but it also applies to groups. The fittest groups, those that survive, are the groups that are best able to cooperate and work toward the common good of the group.
Third-party punishment evolved in humans, it is believed, to reinforce group fitness. Within a group, it is in each individual’s self-interest to cheat and steal. If an individual can cheat others and steal more for himself without getting caught, then he will retain a disproportionate share of the group’s resources. This, of course, is destructive of the group. First-party punishment, the guilty conscience, acts as a check on this. If we had only first-party punishment, though, a guilty conscience would likely be overridden by the benefits gained from cheating and stealing. Second-party punishment provides more deterrence. A thief risks detection and retaliation from his victim, but that requires the victim to find out the crime, identify the perpetrator, and have the ability to effectively retaliate. Third-party punishment, however, provides the most comprehensive deterrence for the cheating thief. With third-party punishment, the wrongdoer must worry about detection from every member of the group. In addition, he cannot rely on the victim being unwilling or unable to retaliate. The group will seek retribution, and no matter how strong the thief may be, the group is stronger. This creates a powerful incentive to cooperate because the risks of running afoul of the group are too high.
From this perspective, third-party punishment does have an evolutionary individual benefit. If the group is healthy, strong and protected, then the individual is safer and more secure, and therefore better able to propagate healthy genes, i.e. his kids and grandkids are more likely to survive and flourish in a healthy group.
In his book, The Punisher’s Brain, Morris Hoffman writes:
It might not be an exaggeration to claim that we didn’t really become civilized until we became willing to punish each other for generalized wrongs to each other. That willingness allowed us to rely with more confidence on the promises we gave to each other, which in turn allowed us to make delayed promises, which gave us trade, divisions of labor, and economies of scale.
Inter-group cooperation and group fitness, then, is vitally important to the development of human societies. And we have developed very sophisticated third-party punishment mechanisms. In modern America, third-party punishment is delegated to democratically elected legislators, law enforcement officials, prosecutors and judges. Citizens have conferred on the people filling these roles the power to make laws, to create penalties, and to enforce those penalties against violators. These powers are spread among various individuals who are electorally accountable to the people as a means of checks and balances on this special power. The checks and balances and democratic processes generally convey legitimacy and acceptance by the citizens, even the wrongdoers.
Through such sophisticated processes, third-party punishment has been consistently applied across time and cultures not just to victim crimes, but also to crimes that do not have a direct victim. The best example is drug crimes. Although drug crimes result in no direct victim, drug use is detrimental to the fitness of the group, and is, therefore, disfavored and punished by the group.
Over the last several years, the pendulum has swung in the direction of being more lenient toward crime, particularly drug crime. This cuts against our instinct for third-party punishment as a tool to reinforce group cohesion and fitness. This instinct has deep-seated evolutionary roots. Human societies have long understood what we seem to be forgetting today. As an example, also taken from Morris’s The Punisher’s Brain, the ancient Hindus mythologized the development of third-party punishment this way:
This is how punishment arose to protect the moral law, for punishment is the eternal soul of dharma. Brahma performed a sacrifice in order to create, and as happiness prevailed, punishment vanished. A confusion arose among men: there was nothing that was to be done or not to be done, nothing to be eaten or not to be eaten. Creatures harmed one another and grabbed from one another like dogs snatching at meat; the strong killed the weak, and there were no moral bounds. Then Brahma said to Siva, “You should have pity on the good people and abolish this confusion.” Then Siva created punishment, which was his own self.
In this scene, the deity Siva is the embodiment of third-party punishment. Siva was activated here specifically to bring cohesion to the group, to improve group fitness. Siva is also the expression of the instinct that lives inside each of us to punish a wrongdoer even when we are not the victim, or just when our group is generally harmed. It is the desire I had, even as a kid, to hit the dad because he hit the child.
Third-party punishment has deep evolutionary roots. So deep, in fact, that it is a universal human instinct. Criminal justice theories that ignore this instinct will always feel amiss. The retributive theory of criminal justice not only acknowledges this instinct, it is the real life application of the instinct. In this way, retributive theory is the most satisfying, it is the most effective, and it is the most just rationale for criminal punishment.