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I think you’ve kind of elaborated on the wrong things (although I’m interested to hear more about the skateboarding and if we know any of the same spots).
But what are they? I do too though. I believe that there is a human instinct for retribution that has been delegitimized in academic penal theory regarding deterrence, and that a victim is actually owed this retributive justice because it instinctively feels good and its omission is a harm. Additionally I think that there are some things humans naturally find disgusting, and that disgust is also a harm (in a lesser but similar way that assault is a harm), and I found the class I took on Rawls laughable because the professor a priori denied that a person has a right to not feel disgust while possessing a right to not be slapped.
But what topics?
I definitely agree here. Once a civil authority can no longer predictably keep you safe from crime or make satisfaction after the event, you should have the right to inflict corrective corporal punishment on the criminal provided you have sufficient evidence of the crime occurring (video recording). This is doubly true if the crime will not be investigated or if the response time is greater than half an hour. Our idea of withholding personal justice is predicated on the faith that our victimhood will be satisfied by a higher civil power. It’s also truly insane from a psychological position of (ironically) deterrence theory. Imagine if you withheld administering a slap on your dog after biting a child, and instead waited months before assigning a verdict. Such a process is only effective for rational intellectual creatures and criminals who reason about there actions longterm, not for your average violent or antisocial criminal. We could be deterring so much more crime by simply beating criminals immediately if sufficient evidence is obvious, or at the very least throwing them in a cell without food for 30 hours (the walls decorated with the psychological cues of their crime). This is actually vastly better for the criminal who hopefully develops a minor trauma response when considering criminality in the future.
this already happens. if there is probable cause the criminal is arrested and detained until arraigned
I do believe that we feed them and do not yet adorn their walls with the the signs of their crime.
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Seems like a fully general argument against, for instance, freedom of speech? I can certainly find plenty of people who would honestly say that they find whatever you want to talk about to be disgusting, you could do the same for me.
But, more generally: I think there's a higher-level game-theoretic value to discouraging utility monsters.
'People shouldn't get slapped' is a pretty fair restriction. Slapping can cause real physical damage; direct physical pain from bodily assault is very universal negative utility that's very hard for people to ignore or overcome, and we wouldn't want them to generally lose that negative association anyway; and most importantly, a slap is specifically directed and targeted at a singular individual, giving that individual broader rights to object to it.
But if someone says 'I am disgusted by things I see in my environment, I have a right to demand they stop' then that's a pretty different thing. First of all because those are passive things not targeted at the individual, which they can avoid if they don't like them, and that have value to other people which they are trying to destroy. And second because while disgust is a universal human experience, the targets of disgust are not universal, and it's very likely the person in question could retrain away from that disgust if they wanted to (much more easily than someone could train to not feel pain when slapped).
Allowing someone's disgust at seeing something to be a moral imperative towards everyone else creates a perverse incentive for everyone to become as disgusted as possible at everything they oppose on any grounds. Not only is that a hugely dangerous weapon to hand people, it favors the creation of a society in which everyone is unhappy all the time because they have to be performatively disgusted by everything they oppose. Which also shifts all discussions and attempts to actually solve problems away from reason and towards emotional assaults.
So, basically: don't feed the utility monsters.
(and since I have some ability to predict the future: yes, this is an argument that can be deployed to validate rejecting trans people, I think that's a valid form of argument but not a strong one because of the different circumstances esp. around how targeted the request are)
The idea of freedom of speech developed in a period with strong indecency laws and “unsightly beggar ordinances”. For hundreds of years people were able to see the nuance between permissible expression and things that are disgusting. I am not saying “anything someone finds disgusting should be illegal”, and in fact no such law has ever existed, rather that what a reasonable person finds disgusting should not be done in public. This is how eg indecency laws operated. The rare case of contention over decency versus indecency does not invalidate the utility of the distinction in the 90% of applicable cases where a majority of reasonable persons concur. If we choose to ignore disgusting things you run the risk of causing serious harm (disgust) to reasonable people which in some cases can be worse than a slap.
I think this is just wrong? Sodomy laws have certainly existed to outlaw things happening in private, for example. I'm pretty sure there have been banned books that it's not legal to own private copies of. To the extent that restrictions on pornography exist they've applied to private spaces. Etc.
At any rate: Yes, the public/private distinction is relevant, asking for things to be kept out of public spaces is being less of a utility monster than asking for them to be eradicated entirely. Although the modern world has complicated that distinction profoundly; are social media sites public or private? If you do something in a private space that gets recorded and then broadcast in public (maybe by an enemy), was the thing itself ok? Is Netflix or Cartoon Network 'public'? There's a lot of room to stretch the definition of 'in public' into every corner of our private lives, which seems to be the tact used whenever you allow 'disgust' as a policy-relevant factor for people to manipulate.
But you're also ignoring one of my central points here:
You're still reifying 'disgusting things' as if that were an ontologically basic category, rather than a subjective individual judgement which is contingent on culture and upbringing and which people can train themselves into or out of or just lie about.
If you think being gay is a sin and should be illegal, I can point at separation of church and state and tell you to screw off. If you say that gay people are disgusting and you shouldn't be forced to see them holding hands in public, suddenly you've appropriated the power to take away their rights to act normally and be regular people across huge swaths of daily life, plus all the other knock-on effects of making things invisible and hidden.
And again, the point is that 'disgust at seeing gay people holding hands' is not a universal or primitive qualia the way 'pain at being slapped' is. You can train yourself into or out of it, culturally if not individually, which means that allowing it to be a factor in forming policy turns it into a weapon that you're incentivized to encourage.
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And this points to a major flaw in all social contract theories. There's no remedy within the system for breach on the part of society. Self help of the sort you describe is verboten. The sole judge of cases under the contract is society's representative (called "government").
The social contract is self-terminating.
If Penny and Neely had gotten into it in Mogadishu, he never would have been arrested. Because the social contract doesn't exist there. There's a DR line that goes "the police aren't there to protect you from criminals, they're there to protect criminals from you"- and that is in fact part of their job. In a state of nature when I discover someone trying to pick my pocket I maul him badly and part of the social contract is that I accept, in exchange for the police arresting him, that I don't get to put him in the hospital. And everyone knows it on some subconscious level. In a society where the police will not arrest criminals, citizens cut the hands off of thieves their damn selves and lynch mobs form at a moment's notice.
"Muh anarcho-tyranny" anarcho-tyranny is not a stable equilibrium. Lack of prosecutions result in police being less willing to do their jobs until whoops, Mr. Patel can break ribs on suspected shoplifters at his liquor store to his heart's content and the cops ain't doing shit. Eventually it doesn't get that far, of course; the bandidos show up and make Mr. Patel a deal; they take care of the ne'er do wells in very pinko-unapproved ways, and he pays them, with some forwarded to the police to file a report saying there's nothing to see there. Lack of enforcement of laws results in eroding state capacity until the state can't enforce the laws on normal people either.
That's the Leviathan shaped hole; someone is going to keep order even if it's not the government(at this point it's a failed state and usually taxes stop being paid). Establishing the Leviathan is a society-wide hock because threading the needle between pointlessly oppressive and so dysfunctional it loops back around into pointless oppression is a hard task with serious risk of grievous bodily harm.
Under what theory? Certainly not Hobbes.
And if YOU breach that contract, the police arrest you and maybe put you in the hospital. But suppose the breach is on the part of the state... they don't arrest the miscreants. What's your remedy, as an individual, supposedly a party to this contract? None at all. Social contract theory is merely an elaborate moral justification for a demand to obedience to government; what differentiates Hobbes's version is it's less sugar-coated.
It doesn't need to be a stable equilibrium: with enough force it can be maintained. As state capacity has risen, so has the capacity for anarcho-tyranny. When Bernie Goetz shot four men in the subway and buried the weapon upstate, he might actually have gotten away with it (he later turned himself in); there were no clear pictures of him. Had Daniel Penny tried to run, ubiquitous surveillance would have had him caught in no time.
The social contract exists because of the legitimacy of the king’s justice, and the king’s justice is legitimate because people- cops, sailors, shopkeepers, housewives, farmers, truckers, factory workers, street sweepers, you know, the mass of the commons- believe that it is just. The underclass has no meaningful social contract because they believe the kings justice is illegitimate; so they break the law at the drop of a hat and expect no protection from it either.
If Mr. Patel believes that there is no justice from the king, he will simply beat suspected shoplifters himself, and suspected shoplifters will probably not be filing police reports(they also don’t expect justice), so he can probably get away with it for awhile. But in practice, I suspect that a local 1%er MC will happily take a retainer fee to do far worse things than he would to ne’er do wells and miscreants that chose his liquor store as the location for their delinquency, and they don’t care if a member gets arrested from time to time- he’ll be out in far less time than the judge sentenced him to, and the cops aren’t willing to come down on the hell’s angels like a ton of bricks because why risk their lives like that for the king’s justice that is not just? Better to take a modest bribe and file a report saying no sir, that motorcycle clubhouse is a perfectly ordinary members-only bar, there’s nothing fishy or illegal going on.
The outlaw is outside the law, and being outside the law goes both ways. I know you’re eeyore, but surely even you can see that- ground level decisions in the real, material world matter, and cops have no sympathy for outlaws and outlaws don’t go whining to the cops even if they don’t expect to be themselves caput lupus; they have inaccurate ideas of how police encounters go and a sense of machismo forbidding it(what, you gonna squeal to the pigs like a battered woman?). It’s not just that maintaining a functioning society involves someone beating up lumpenproles, it’s that people trying to make a nice place for themselves in an otherwise dysfunctional craphole need the lumpenproles beaten up, and if they can’t free ride off the police they’ll have to do it themselves or outsource it to other rough men.
The people who go and physically do things matter and when the social contract loses legitimacy they stop doing the things pieces of paper from mandarins tell them to do and start doing the things that benefit them, personally. Corrupt cops are not great for the citizens, but they don’t do anything to protect the outlaws either, no matter what the mandarins say(why should they, they’ve got a union to cover them for not doing their jobs).
The king's justice's "legitimacy" rests on the cops and the soldiers; the others don't matter unless the king wants them to matter (as Justin Trudeau made clear during the trucker protests)
If Mr. Patel believes there is no justice from the king, he may beat the shoplifters himself. But the shoplifters may well go whining to the police. Or it might get out of hand and result in something the police won't ignore. And unlike the local 1%er MC clubs, the cops WILL come down like a ton of bricks on Mr. Patel. They'll send him to Rikers Island, a very rough jail where, unless there's an ethnic-Indian protection gang (which there may or may not be), he's going to be hurt. When he gets out he'll have many restrictions on him and likely lose the licenses necessary to operate his store. Which doesn't matter all that much because the fees he pays to his lawyers mean he'll lose the store anyway. He'll likely be advised by his lawyers that his best bet is to plead to a lesser felony, which not only puts him back in prison but means for the rest of his life he will be unable to obtain licenses and such, so at best he'll end up working the night shift for his cousin in the cousin's store. And according to social contract theory THIS IS JUSTICE. The king said don't hurt the shoplifters, leave that to me. Then the king didn't do anything. The king played dog-in-the-manger with the monopoly on violence... but according to Hobbes and all the rest, this was absolutely something within the king's discretion to do.
The truckers won. They took a few licks, but as Kulak convincingly argues, they won.
And it’s worth asking ourselves who the cops and soldiers are. And in every society within modernity, they’re from the mass of the common people. Sometimes they’re from the upper end(second sons of kulaks or whatever) and sometimes they’re a cross section and sometimes they’re from the bottom. But the difference between ‘the opinions of cops and soldiers’ and ‘the opinions of housewives, janitors, shopkeepers, truckers, factory workers, bus drivers and all the rest’ is very small; the king’s power comes because masses of common ordinary people follow orders and don’t just say the follow orders and pocket the money like a bunch of education bureaucrats. The clerks and bartenders and truckers who have to deal with the consequences of anarcho-tyranny are the friends, neighbors, brothers, parents, romantic partners of the cops and army sergeants that the king depends on; the anarcho-tyranny phase sucks for them, but for that reason it is just a phase.
The truckers were utterly defeated and their leaders are still being prosecuted.
They're those selected for both a penchant for violence and willingness to obey the regime.
No, they aren't. Cops are different; you've perhaps of the "us vs. them" dynamic among police officers? To police, police are "us". Sometimes a few other groups of public service workers such as EMTs are at least us-adjacent. Those other people, the janitors and truckers and factory workers and such? Those are the people the cops consider it their job to keep in line, they're "them". Soldiers are a different "us"; the military makes them into a breed apart, and so they remain.
ETA: You said
Yes, someone is keeping order. The Leviathan is the cops and the soldiers who are keeping the people in line. But it is also the schizos and petty criminals who have free reign. The prison gangs who impart harsh injustice to those who fall afoul the state's rules. The bevy of lesser officers who harass shopowners and other basically-decent citizens for violations real and imagined. Your "Mr. Patel" and the truckers and the Daniel Penny's of this world are kept in line by all those powers. The sort of order where a man may run a store and not fear to be robbed is one sort, and Hobbes would approve. But the order of Gotham City, where the criminals are given wide reign and the ordinary people are kept in line through fear of them on the one hand and the state on the other, is just as valid by Hobbes's philosophy. Who said the sovereign must rule on behalf of the decent man to suppress the scum? No, if the sovereign prefers the scum... well, he's still the sovereign.
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Depending on how you are framing the contract, I think the remedies are supposed to be things like exit rights, voting, and revolution.
None of which are perfect, to be sure.
The actual terms are irrelevant, because they're all interpreted by government.
Saying that voting is irrelevant because it is interpreted by government feels like it's missing the point of democracy.
I can't tell if this is just a 'letting the perfect be the enemy of the good' thing; sure, the government could conceivably subborn democracy in a way that makes it irrelevant (at which point it's not democracy), and it certainly always does subborn it at leas at little bit (see: electoral college et al.). But those imperfections don't actually make democracy functionally identical to dictatorship, it's still actually a lot better than that in practice.
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I disagree there. Excess punitiveness led to the opposite swing of the pendulum which we have now, where in some places crimes are not even prosecuted and instead reclassified as "aw shucks boys will be boys" horseplay. The insurance will pay for your cleaned-out store, why are you even complaining? If you insist on having a car parked in public, of course the window will be smashed so any items that may be inside can be stolen. So why would the police even bother, when they know nothing will come of it? To quote a story from 1909 about the same viewpoint:
But you need the reform and rehabilitation as well as the punishment, otherwise you are just throwing the person back into the same environment from which they came. People starting off with petty crime will continue on the path to more serious crime, the serious criminals will just take 'doing time' as part of the package. There has to be a balance. Some small amount will be truly incorrigible and locking them up for long stretches will be the only way to deal with them, but some will also be willing to change, if they get help on to another path and support to keep them away from falling back into the same neighbourhood, same associates, same situations they were in before they were convicted.
And more convictions. Fewer slaps on the wrist. People plainly gaming the system having to face the consequences of their behaviour. Absolutely I agree with all that. But you can't just beat the crap out of them (though a timely slap round the back of the head for some of the 'youth' might do way more than all the bleeding-heart 'little Johnny can't help it, he's a victim of society' or being thrown into a cell with no food for two days) and leave it at that, for those who can be helped, then we should extend mercy. Mercy does not mean stupid or soft-hearted, though.
What should be the purpose of the criminal justice system? You have given punishment & reform already, and I agree with you on those. But you left off isolation, we also need to keep dangerous people out of society. This is the "leviathan shaped hole in the discourse" that OP is refering to.
I think that hole exists because we have framed the discourse around the criminal, not society. Which is stupid, why should the discourse revolve around the 1% of people who do bad things? Whats best for society is really only considered through the reform lens - i.e. society benefits from reform as we dont have to spend $x to imprison and get $y from every successful reintegrated convict. When you leave out the leviathan lens you miss out on three strikes laws. The idea that "hey the vast majority of violent crime is done by people who have already done violent crime, we can just lock them up and isolate them and cut the occurrence in half." Or whatever large amount. The idea that the state could just uphold the law, actually send people to jail for their full terms, with the enhancements, and not let them out until theyre in their 50s and mostly too old to get into much trouble. The idea that we could actually do that, and in fact we have an obligation to do that. The law is what we legitametly and democratically agreed upon, we could just enforce it. And not have to deal with violent homeless people in the subway.
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We haven’t had excessive cue-response punishment in America for a long time, because what is universally important for deterring animal behavior is that the punishment occur parallel or quickly following the behavior. The association must be intuitive and salient for deterrence to occur for animals, and it’s only different among Civilized Man because he has been trained to constantly self-administer judgment of behavior so that cue-response rewards and punishments are artificially associated with the behavior in the mind. Taking a long time to arrest someone, or placing them on bail, is not sufficient punishment for animals if our intention is to change behavior. You can even ask them why they are being punished and they might say something approximately like “the government” or “racism” or “snitches”, ie they are mentally inculcating a pattern that is only going to produce more criminality in the future.
But in any case, it’s the fault of judges if they don’t follow the rules, not the fault of a given schema. Your 1909 quote is clearly about a specific category of crime that wasn’t considered serious at the time (hitting your wife).
Maybe I wasn’t clear in my post. You do not need any reform or rehab because animal behavior will 100% change provided a behavior is associated with punishment. That is the reform, that is the rehab. It’s how you learn not to touch hot things, not to be mean to others, and even to keep your King defended in Chess. Dog’s do not actually need reward-training to learn not to jump on the counter because you can just pinch their butt and shout, or quickly place them in a cage (if you are one of those progressives who mistakenly believes that isolation and boredom are less painful than brief physical pain). This is all very simple animal psychology that should be common knowledge and taught in schools. An animal can become traumatically afraid of walking on ice simply by falling into a frozen lake, no reform required (I sadly learned this from personal experience: my genetically-evolved Labrador never swam in her life because she escaped the yard and found her way on a frozen lake.)
I say, many more physical slaps on the wrist for young criminality including poor school behavior, which progresses in adulthood to beatings (continued until morality improves).
We seem to have different notions of what a 'slap on the wrist' involves, but in my day we had corporal punishment in school and I agree that a good swipe of the báta wouldn't go amiss with some 😁
My 1909 example is not about the crime, it's about the expectation on the part of the citizen. "Look, a crime is being committed over here!" and expecting the cop to rush to the scene, while the cop knows the complaint won't be pursued (the wife won't bring a charge against her husband, Chesa Boudin when he was still there won't bring a prosecution) so he takes his time and strolls along leisurely, if he even bothers to go.
If the cops know that the wife-beater/crazy guy on the subway will be held and won't be out on bail within five minutes of being arrested, then they have an incentive to do the damn job. And that's on us, who vote in or support the guys who campaign on "I will stop the incarceration pipeline". Mind you, the "tough on crime" lot are not much better; it's no good being 'tough on crime' when the courts are backlogged and the jails are too full to hold the convicted, you need to put resources in there too.
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