Banished from the City

Hands of the prisoner

The relation between morality and law is (or ought to be) complex and subtle: the two are neither identical nor entirely separate. Once upon a time everyone seemed to understand this, as if by instinct; but the instinct, if it ever existed, has been lost. When someone says, by way of excuse for his bad behavior, that “There’s no law against it,” he implies that what is not legally forbidden is permissible in every other sense.

No one, incidentally, ever explained his good behavior by reference to this legal/illegal boundary. The misunderstanding is a motivated one.

A misunderstanding of the morality of punishment and its justification in law will not always be grounded in self-interest, however. We can see this from a brief column recently published in the Guardian by the philosopher Nigel Warburton. Warburton considered the case of a man called John Paul Burrows, a multimillionaire who worked in the City of London as the director of a very large investment company.

Burrows found a way not to pay his full commuter-train fare and travelled about a thousand times without paying. Eventually, he was caught, and paid the train company approximately $70,000 (twice as much as he would have had to pay to travel legally) in return for a decision not to prosecute. He resigned from his position, and the authorities in charge of regulating the the financial sector (a.k.a. “the City,” the British version of America’s “Wall Street”) banned him from working in that sector for the rest of his life.

He was by far the largest train-fare-dodger in British history, at least as far as is known. The columnist/philosopher, though, wondered whether the authorities were right to prohibit him from ever working in finance again.

Warburton lays out fairly the considerations that must have gone into the levying of this punishment. The authorities could hardly overlook the personal dishonesty of a man ultimately responsible for the investment of billions of other people’s money, even if it was confined to cheating on his railway tickets. Burrows didn’t have the mitigating circumstances that other fare-dodgers might have had—for example, a desperate financial situation not of his own making. Nor could he claim to have acted impulsively, or to have had a momentary lapse such as we all have had. His fraud was deliberate and long-lasting, and it is difficult not to believe (though there is no proof of this) that his motive was to prove himself much cleverer than the stupid railway company.

Or perhaps he merely wanted to render commuting, which after all is a dull business, more exciting. I know this motive well: on a long car journey I deliberately let my fuel run low in order to run a race between fast-declining fuel and the next filling station. Once, to my great satisfaction, I judged it just right: I glided the last few yards up to the pump while on empty.

The philosopher expresses his qualms about the lifetime ban. First, it does not leave the man any room to redeem himself. “You don’t have to be a Christian,” Warburton writes, “to think that some opportunity for redemption should remain.”

There are two objections to this. The first is that, even if the redemption of the punished were the object of punishment, this would be false. There is always more than one route to earthly redemption and to being useful to other people. It cannot possibly be that a return to finance is the only way Burrows could prove he had turned over a new leaf. Indeed, a return to the City, at least at a level that he would find attractive or commensurate with his knowledge and experience, would resemble impunity more than an opportunity for redemption.

But at any rate redemption is not the purpose of punishment, for if it were there would be no crimes beyond its reach, no crimes so terrible that they could not be forgiven. Far from being generous, this kind of reasoning seems to me callous—lacking in imagination about just how terrible crimes can be, an almost wilful disregard of the history of the 20th century. And if a Christian were to object that no crime is beyond the Savior’s forgiveness, it should be recalled that His kingdom was not of this world. As for us, we are men, not saviors.

The second, and “more worrying” reservation in Warburton’s mind is that the punishment will be applauded by a populace already angry with, and envious of, financiers. Thus it would “deflect attention from greater inequalities that some in the square mile [“the City”] perpetuate.” Burrows “may be a scapegoat,” he writes.

This seems a destructive argument. It is true, of course, that there are far greater crimes than the one under discussion here. But just as there can be only one richest man in the world, so there can be only one worst criminal (or a few equal worst criminals) in the world—at least if the badness of crime can be measured on an analogue scale, which I very much doubt. It is no excuse for one man that another man has done something even worse. I cannot argue in my defense, when caught for speeding, that I know someone who drove twice as fast and got away with it, rendering any fine imposed on me an act of scapegoating.

In the end, the philosopher (whose touchstones in this piece are John Rawls and Thomas Piketty) comes down on the side of banning the bloody one-percenter. Still, it is worth noting that his two hesitations before lowering the boom—they are not his alone, I suspect—are based upon misunderstandings, first that the purpose of punishment is redemption of the punished, and second, that no one can be rightfully punished until justice is perfect (a state of things in which no one gets away with anything).

The practical ramifications of the latter, of course, would be that everyone could get away with everything.

Let me add, in case any of this sounds too punitive, that I recognize that we all have a sneaking antinomian sympathy for roguishness. We enjoy, every now and again, those who cock a snook at authority, as Burrows did with his extended period of fare-dodging. It is just that society cannot be organized on a foundation of such a feeling.

Theodore Dalrymple

Theodore Dalrymple is a retired prison doctor and psychiatrist, contributing editor of the City Journal and Dietrich Weissman Fellow of the Manhattan Institute.

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  1. Marcus says

    No, the most important objective of punishment is justice.

    In a punishment the criminal is given his desert, the punishment he receives must be earned, deserved and proportional to the scale of his offense. If the primary objective were deterrence then the punishment need in no way be deserved or proportional. If deterrence were the highest law then if I could prove that fare dodging could be reduced to nil by executing this man then by such lights it would be entirely appropriate.

  2. F Bruno says

    Respectfully, I think the most important (and pratical) objectives of punishment are retribution and deterrence. Justice is its foundantion, the reason why, despite our fallibility, we have the moral grounds to inflict punishment on a criminal. By the same token, it is a way of measuring and restricting the penalty to be applied.

  3. BTG says

    Dr. Dalrymple’s observations conflate “punishment” to include prohibition by regulators from continuing employment. Although the effected person might rightfully view the ban as punishment, there is danger in confusing the use of an extra-judicial sanction by regulators as being an appropriate part of the resolution for the criminal offense of fare-dodging.

    Western social democracies increasingly tie their citizens down in an ever-accelerating web of regulations by bureaucrats (governmental, quasi-governmental and self-regulatory). Excessive regulation is yet another form of the impulse to tyrannize through law; think of statutes that now criminalize behavior while eliminating criminal intent, or making it a crime for an owner to resell individual cigarettes, or the seemingly omnipresent cameras at intersections. Think Gulliver awakening on Lilliput!

    By adding a regulatory bureaucratic sanction (the ban) to a criminal penalty (payment of fares plus a penal sum), where the offense (fare-dodging) is unrelated to actual employment behavior is punishment that does not fit the crime. “But”, you may say, “(1) honesty and integrity are essential to being a licensee in the financial sector and, (2) the regulator probably has general requirements of integrity that are a predicate to holding a license!” Point (1) is certainly true and point (2) is probably accurate.

    That said, an essential touchstone of any legal system is predictability. If the citizenry, which is regulated in so many ways, faces regulatory punishment beyond the criminal justice system because of the commission of a minor, but repetitive crime then predictability may suffer. Dr. Dalrymple rightly points out the correlation between integrity in small, but repeated offenses (not paying fares) and in larger things (honesty in financial affairs). However, the crime in question ought to have led the regulator to carefully scrutinize the man’s behavior in his regulated conduct, but not, ipso facto, impose a ban. While repeated fare-dodging is not an inconsequential matter, using a regulatory scheme as simply another form of criminal punishment, without demonstrating misconduct in that person’s business affairs is overreach and may deny due process. Worse still, it renders the law unpredictable. Might a store clerk doing exactly the same thing suffer the same punishment? Would that be an equal application of the law? On the other hand, might that clerk be barred from continuing to live in a rent-controlled apartment? Might it not be said that the clerk’s landlord might be fearful that the clerk may not pay his rent or utilities or obey the trash ordinances?

    As laws and their punishments, become less predictable and cover more behavior they engender less respect and may be perceived as draconian. Consequently, the law as an effective tool of ordered liberty diminishes.

    • Burke says

      Again respectfully, BTG, and granting that most of what you say is true, you really can’t expect that, say, an alcoholic doctor or professional driver should be allowed to continue to operate, or to drive, after he kills someone under the influence of whatever is his cup of tea…

      By the way, and as to predictability, all the countries that have written penal law include in the abstract sanction the prohibition, temporary ou not, of continuing to practice whatever it is that the crime showed the criminal to be incapable of doing. (Pardon my English; it is not, obviously, my native tongue.)

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