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One might argue that if a punishment is genuinely collective, there is no punishment of individuals at all (apart from additional individual punishments based on individual guilt). For punishment is not just a matter of the infliction of harm but is also, and essentially, a matter of intention. When a convicted criminal is punished, his relatives may also be harmed; indeed, they be harmed to an even greater degree than he is (by grief, loss of income, loss of reputation – in some cases, because of common beliefs about collective shame – and so on). But this does not mean that the relatives are punished. Rather, they are harmed unintentionally as a side effect of the punishment of the criminal. One might argue that, in a precisely analogous way, collective punishment involves the punishment only of the collective itself. Harms suffered by individual members of the collective as a consequence of the punishment of the collective are entirely incidental. Individuals may be harmed directly – for example, their businesses may be directly affected by trade sanctions against their country – or they may be harmed only indirectly or derivatively, by virtue of their identification with the collective and their investment in its good. But such harms need not be intended and need not count as punishment.
What might be gained by the infliction of a genuinely collective punishment – that is, one intended to affect only the collective itself? If the aim is retribution, then collective punishment will, in my view, always be disproportionate in practice. This is because I think retribution – understood as the intrinsic good involved in the infliction of deserved suffering on wrongdoers – is a comparatively unimportant aim. Suppose, for example, that life imprisonment can be equally effective in preventing and deterring crime as capital punishment, and at no greater cost. In that case, even if some offenders really do deserve to die, execution will nevertheless always be wrong in practice because the value of retribution will always be outweighed by the ineliminable risk of executing the innocent, or by the harms that would be caused to the offender’s relatives as a side effect. Capital punishment would, in short, always have side effects that would be disproportionate in relation to the aim of retribution. And if this is so in the case of retribution against an individual, it is all the more so in the case of retribution against a collective, whose desert is of a different nature from that of an individual.
Suppose, however, that something more important than retribution is at stake, such as the prevention or deterrence of further wrongdoing by a collective such as a state. One might argue that in such a case the harms inflicted on the innocent as a side effect of collective punishment could well be proportionate in relation to the good that the punishment might achieve. Yet if in such a case there are members of the collective who are individually innocent and who will be harmed as a side effect of the punishment of the collective, would it not be more just to try to identify those members of the collective who are individually guilty, or who bear most responsibility for the action of the collective, and punish them rather than punishing the collective as a whole? If the aims of the punishment are prevention and deterrence, it seems that punishing the individuals who are guilty should be just as effective as punishing the collective as a whole. It is also probable that punishing only the responsible agents would have fewer harmful side effects on those who are individually innocent. It therefore seems that individual punishments would almost certainly achieve a better balance between the goals of prevention and deterrence and the infliction of unintended harms on the innocent.
I have so far assumed that it is possible for collective punishment to be discriminate, in the sense that it is possible to intend to harm only the collective itself and not the individual members, many or all of whom may be individually innocent. There may, however, be cases in which this is not possible. There may be collectives that have so little internal structure or organization that it is impossible to harm or damage them except by harming their individual members. If there are, it may be impossible to punish the collective without intending to harm the individuals, many of whom may be individually innocent. In that case, collective punishment would be indiscriminate.
The upshot is that collective punishment, as a response to collective guilt in Gilbert’s sense, is in practice almost certain to be either disproportionate or indiscriminate. Collective guilt in this sense is therefore largely or entirely irrelevant to matters of practice.
4 A Possible Basis for Collective Responsibility and Collective Shame This notion of collective guilt, and by extension collective shame, seems in any event not to be what C has in mind. He writes that “the issue for individual Americans becomes a moral one: how, in the face of this shame to which I am subjected, do I behave? How do I save my honour?” (39) For C, the ground or source of the shame may be a collective act, but the shame itself is personal. On C’s view, there is no metaphysical schizophrenia, no division of the self between individual person on the one hand and cell the ghostly collective organism on the other. There are just people, but shame arising from what only some of them do is sometimes distributed among them in peculiar ways by virtue of their relations within a collective. This is the other way in which I suggested earlier that shame or guilt might be collectivized.
C is a novelist. Novelists are sometimes the inspired source of moral insights of startling originality and power. But it is in general not in their line of work to draw out the implications of their insights in rigorous but tedious detail, or to test the ultimate plausibility of those apparent insights by reference to those implications. This is true even of novelists who occasionally write nonfiction. And it is especially true of novelists who are themselves merely fictional, whose options are in consequence highly restricted.
As someone who makes a living by thinking about matters such as this, perhaps I can offer C some professional assistance. His idea that rational pride and shame can be diffused among all the members of a collective through the thin medium of collective identity is one that I think he should want to repudiate. Among other things, it is an idea that he shares with a great many terrorists who often invoke it, if not always in their public statements, at least in their private struggles to rationalize what they do. Many terrorists are highly morally motivated. This is especially evident in the case of suicide bombers. It is therefore unlikely in most cases that they think of themselves as intentionally killing people who are entirely innocent. Even Osama bin Laden, in his “Letter to the American people” of 2002, argued that Americans are not innocent but are responsible for the acts of their government through the activity of voting. But many others think that all Americans (and, mutatis mutandis, all Israelis, all Jews, etc.) are guilty just because they are Americans (or Israelis…) – that is, because they are citizens of a country that is guilty of grievous wrongs and injustices. This is the view that C and many terrorists seem to have in common, though C refers more frequently to shame than to guilt. The difference is that C does not infer from the collective guilt or shame of Americans that they deserve to be killed, or are morally liable to be killed.
C ought not to be seduced by his justifiable revulsion at the Bush administration’s practice of torturing its captives into accepting so crude a doctrine of collective responsibility. He could in fact do better in his effort to find grounds for shame among ordinary Americans for the acts of their government than their mere shared identity as Americans. He might start, for example, by noting that the policy of torture operates through institutions that are designed, organized, and administered by Americans to serve Americans. These institutions are, indeed, partly constitutive of the
object known as the United States. States are constituted by their territory, institutions, citizenry, and so on. They persist over long periods of time despite the replacement of their entire population over several generations, in part because of the continuity of their institutional structures. When the operation of these institutions results in a practice of torture, it may not be unreasonable to locate at least some degree of responsibility for the practice among those whose institutions they are, and especially among those who administer, participate in, and benefit from the operation of those institutions. This is particularly true when the institutions are at least to some degree remotely controlled through democratic decision-making procedures, and when practices such as torture operate through established mechanisms of political authorization. In such cases, responsibility for the practice and its consequences can be traced back, if only tenuously, through chains of authorization, all the way to the citizens themselves. There is thus some substance in bin Laden’s point, though it has nothing like the significance he attributes to it.
C might go further by noting that people have a special responsibility to control the operations of the institutions that serve them. When those institutions malfunction and begin to operate immorally, both those who administer them and those on whose behalf they operate have a duty to try to bring the immoral action to an end. People can incur a burden of shame by failing to fulfill this duty as well as by contributing positively to the continued immoral operation of their institutions.
The focus on institutions is important in another way. For it is usually only by acting in an official capacity within the institutions of a collective that an individual or group of individuals can transmit responsibility and therefore shame for wrongful acts to others in the collective. Suppose, for example, that entirely as a matter of chance all the American perpetrators of torture in Afghanistan, Iraq, and Guantanamo have been Catholics. Even if it makes sense to suppose that their action brings shame on all Americans, it makes no sense to claim that it also brings shame on all Catholics. This is because they had no capacity to act as agents of the Catholic Church on behalf of Catholics. They acted instead as agents of the United States, fulfilling the requirements of certain roles they had in exclusively American institutions.
There is a subtle but important difference between acting in an authorized role or official capacity within a collective, which is an objective matter, and acting “in the name” of a collective. The latter phrase is common and appears in C’s lament, quoted earlier, that “the generation of white South Africans to which I belong, and the next generation, and perhaps the generation after that too, will go bowed under the shame of the crimes that were committed in their name.” (44) But one can, it seems, act in the name of others simply by claiming to do so. This is presumably the assumption of the New York Times editorialist who contended that the action of Pakistani terrorists in India brings shame on all other Pakistanis. If those men had simply been ordinary criminals engaged in mass killing for personal gain, the editorialist would not have supposed that they had shamed an entire nation. It is because he assumes that they took themselves to be acting in the name of all Pakistanis that he believes that they were able to implicate other Pakistanis in what they did. But it is beyond the power of terrorists to implicate the other members of a collective to which they belong simply by declaring that they are acting in the name of the collective as a whole. If a group of white supremacists were to claim, in committing some atrocity, to be acting in the name of white people everywhere, that would not entail that there would be yet another burden of shame under which C, a white man, must go bowed.
5 How Important is it to Avoid Collectively Imposed Guilt or Shame?
I have offered a crude sketch of some grounds on which it might reasonably be claimed that Americans quite generally have been shamed by the Bush administration’s practice of torture. Suppose this sketch has some plausibility and that I and other Americans are indeed bearers of shame for the action of our government. C poses for us the question: how can we save our honor? How might we escape from this burden of shame and how important is it that we should do so?