TCS Daily

Utilitarian Punishment of Saddam Hussein

By Keith Burgess-Jackson - December 17, 2003 12:00 AM

To a utilitarian, punishment is at best a necessary evil. It is evil because it inflicts harsh treatment on the offender -- whether in the form of execution, corporal chastening, deprivation of liberty, or forfeiture of property. It is necessary when -- and only to the extent that -- it reduces (prevents) crime. If a particular punishment does not reduce (prevent) crime, it is unjustified. It would be bringing bad into the world with no offsetting good.

The utilitarian, unlike the retributivist, looks only to the consequences of punishment, not to such things as whether a crime has been committed or whether punishment is deserved. As for how much punishment is warranted in a given case, that depends solely on how much good (or prevented bad) will come of it. Utilitarianism is forward-looking (prospective); retributivism is backward-looking (retrospective). Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873) were utilitarians; Immanuel Kant (1724-1804) was a retributivist. All of them believed that punishment can be, and often is, justified. Even capital punishment. They disagreed, however, about what justifies it.


I'm not a utilitarian, either in general or on the question of punishment. Like Kant, I'm a deontologist and a retributivist. But there are lots of utilitarians out and about, including in philosophy departments around the world. What should a utilitarian say about whether Saddam Hussein should be punished? Utilitarians have been remarkably silent to this point (or else I haven't been looking in the right places for their commentary).


In recent e-mail correspondence with Princeton philosopher and utilitarian Peter Singer, I was struck by his claim that in recent years, Saddam Hussein hadn't been so bad to his people. Yes, Singer admitted, Hussein had killed hundreds of thousands of Iraqis, including many defenseless children, but not during the two-to-three-year run-up to United States military action this past spring. I pointed out to him (because it hadn't come up in our correspondence) that he and his fellow utilitarians are concerned with suffering, not just death. There is ample evidence, I said, that Hussein's reign of terror continued to the end, with torture, rape, and other heinous acts. The massacres may have stopped, but the atrocities hadn't.


Singer's claim puzzled me then and continues to puzzle me now. I gather that his argument is as follows. In deciding whether it was morally permissible to go to war to displace Saddam Hussein's Baathist regime, we should ignore what went before. What's done is done, after all. No use crying over spilled milk. The question we must face -- now, at this juncture -- is whether displacing the Baathist regime would do more good than bad. If indeed Hussein had changed his evil ways, as Singer suggests, then perhaps the answer is no, in which case war would be unjustified by the principle of utility.


But this way of framing the issue ignores punishment. Even if, ex hypothesi, Saddam Hussein had ceased his murderous, rapacious, torturous ways in recent years, punishing him might still be the right thing to do by utilitarian lights. Let me explain.


There are four ways in which punishment can reduce (prevent) crime, and therefore four ways in which punishment can be justified by the principle of utility: (1) incapacitation, (2) specific deterrence, (3) rehabilitation, and (4) general deterrence. I believe the first and fourth of these apply with full force to the case of Saddam Hussein, and therefore justify punishing him according to utilitarianism. Let me discuss the four ways, explaining why they do or do not apply.


1. Incapacitation. Taking Hussein into custody, as the United States military just did, incapacitates him. Whether he wants to or not, he can neither commit nor command (though he may be able to inspire) further crimes. Even if Hussein hadn't committed any mass murders or other atrocities during the past few years (which, pace Singer, remains to be seen), he could do so at any point if he were to remain in power (or at large). Leopards, as they say, don't change their spots. That Hussein committed mass murder before--that he could bring himself, psychologically, to order it -- provides good evidence that he might do so again. Once a mass murderer, always a mass murderer.


2. Specific deterrence. Incapacitation differs from specific deterrence in the following way. When one is incapacitated, one is physically prevented from committing further crimes. One is given no choice in the matter. Specific deterrence works differently. To deter person P from doing act A is to give P a reason not to do A. The appeal is to P's self-interest. "If you do A," the authority says, "you will be apprehended and made to suffer." Only rational, self-interested persons can be deterred (which is not to say that all of them can). Animals can be incapacitated but not deterred. One cannot reason with animals.


Unless Saddam Hussein were going to be released at some point (and obviously he will not be), he -- the offender -- cannot be specifically deterred from committing further crimes. Of course, he might commit crimes while imprisoned (against fellow prisoners or guards, for example, or by trying to escape), but I'll ignore that possibility. He won't be doing any more harm, egregious or otherwise, to Iraqis, to Iraq's neighbors, or to Americans at home or abroad.


3. Rehabilitation. To rehabilitate a person is to rebuild him or her, figuratively speaking. This consists in destroying or moderating the offender's desire to commit crimes. By punishing you (treating you, educating you, teaching you marketable skills), we alter your character. We make you a new person, so to speak, so that when (if) you are released, you are able and willing to live a productive, responsible, crime-free life.


Note the difference between rehabilitation and specific deterrence. Specific deterrence tries to overwhelm the offender's desire to commit crimes. The offender (presumably) continues to desire to commit crimes, but is unwilling to risk punishment therefor. Rehabilitation, by contrast, tries to destroy (or moderate) the desire to commit crimes. But again, since there is no chance that Hussein will be released from custody, neither form of crime-prevention applies to him.


4. General deterrence. This brings us to general deterrence. By punishing P, we inform others (besides P) of the consequences of doing what P did, thereby threatening them with harm for misconduct. We use P (literally) as an example. This is perhaps the main utilitarian justification of punishment (and, because it uses the offender as a mere means to collective ends, one repudiated by retributivists), and it applies with full force to the case of Saddam Hussein. By displacing his brutal regime and punishing him, we let other tyrants around the world, present and future, know that if they abuse or mistreat their people, that if they violate human rights, that if they refuse to comply with United Nations resolutions and mandates, they will be brought to justice. This cannot but have a salutary effect on their behavior.


For the life of me, I cannot understand why a utilitarian such as Singer does not grasp this. Incidentally, Singer's book on George W. Bush, The President of Good and Evil, is scheduled to be published in the spring of 2004. Singer tells me that the book includes a chapter on the war in Iraq. It will be interesting to see how he applies his moral theory to it. I have a feeling, based on our correspondence, that he will conclude that the war was wrong, by the utilitarian standard. I hope everyone reading this column reads Singer's book in light of it. We must not let him either (1) disregard or discount the good consequences or (2) exaggerate the bad consequences of going to war in Iraq. To a utilitarian, all consequences for all concerned must be taken into account. Otherwise, the theory is not being applied correctly.


Singer might reply to my argument that it's no business of the United States to punish Hussein. Who appointed us as the world's watchdog, anyway? By what right do we assume the roles of police officer, prosecutor, and judge (or simply police officer)? If Hussein is in violation of United Nations resolutions, it is up to the United Nations, not to one of its member states acting of its own accord, to enforce them. But this reply is not available to Singer. He told us in his famous famine essay that if one is in a position to save a drowning child with little or no cost to oneself, one ought to do so. It is not merely a good thing to do so; it would be wrong not to. It doesn't matter who you are or why you happen to be near the pond; nor is it necessary that it be your job to make a rescue effort. All that matters is that you're able to save the child. Can implies ought.


The United States was uniquely situated to remove Saddam Hussein from power and to punish him. It had the ability to do so (in utilitarian parlance, it was an act that was "available to the agent"), so the only question is whether it should have. That other agents, such as the United Nations, stood by and did nothing is morally irrelevant, just as it would be in the drowning-child case.


Whether the United States should have done what it did depends (to a utilitarian) solely on the consequences of doing so, and I have argued that there are many good consequences of punishing Saddam Hussein. Among them are that we incapacitate a demonstrably dangerous person (compare a rabid dog) and that we deter other would-be tyrants from doing what he did (or anything comparable). The United States has spoken loudly and clearly to those who are tempted to violate human rights: "Do so at your peril."


I have focused on utilitarianism not because I'm a utilitarian but because retributivism, its theoretical rival, clearly justifies the apprehension and punishment of Saddam Hussein. I believe -- and have tried to show -- that there are ample utilitarian grounds for the United States military action in Iraq, an action designed not just to liberate the Iraqi people (how's that for a good consequence?) but to punish a ruthless mass murderer, rapist, and torturer. I wish utilitarians such as Peter Singer would either endorse the military action or explain where my reasoning goes awry.


Keith Burgess-Jackson, J.D., Ph.D., writes a column entitled "The Examined Life" for Tech Central Station. Please visit his personal blog, AnalPhilosopher (, and his communal blog, Animal Ethics (


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