Sadomasochism and Justifications for Punishment.

      In modern criminal law, two broad species of rationales for the imposition of penal sanction are generally understood to be available.(23) The first of these is utilitarian, and is comprehended in the consequentialist and teleological principle of utility described by Jeremy Bentham. “By the principle of utility is meant that principle which approves or disapproves of ever action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party in whose interest is in question.”(24) The second of these is retributive, and has its locus classicus in the deonotological moral theory of Immanuel Kant. Retributivism, for Kant, is but an implication of the categorical imperative. “The categorical imperative, which as such only affirms what obligation is, is: act upon a maxim that can also hold as a universal law.”(25)

      Utilitarian theory looks to the good of the community and asks whether a particular action serves to increase or decrease the  “sum of the interests of the particular members who compose [the community].”(26) Utilitarian theory conceives of happiness and good in essentially quantitative, “hedonistic” terms: “By utility is meant that property in any object whose tendency is to produce benefit, advantage, pleasure, good, or happiness . . . or to prevent the happening of mischief, pain, evil, or unhappiness to what party whose interest is considered.”(27) In Bentham’s view, asceticism is the categorical denial of the principle of utility, by which men prefer pain to pleasure, and is the fount of crime.

[A]ny one who reprobates any the least particle of pleasure, as such, from whatever source derived is pro tanto a partisan of the principle of asceticism. It is only upon this principle, and not from the principle of utility, that the most abominable pleasure which the vilest of malefactors ever reaped from his crime would be to be reprobated, if it stood alone. The case is, that it never does stand alone; but is necessarily followed by such a quantity of pain . . . that the pleasure in comparison of it, is as nothing: and this is the true and sole, but perfectly sufficient, reason for making it a ground of punishment.(28)

 

To his eighteenth-century mind, asceticism is the common quality of traditional religious superstition as well as much of classical philosophy. Adherents of asceticism “think it meritorious to fall in love with pain” and accordingly misapply the principle of utility.(29)

      On its face, then, utilitarianism seems diametrically opposed to the whole purpose of sadomasochism. In his empirical-rationalistic schema, pleasure is unequivocal and obvious: Bentham can accept the masochist’s identification of bodily pain with sexual pleasure no less than the religious ascetic’s identification of eternal pleasure over bodily pain. But assuming for the moment, as masochists will say, with all subjective honesty, that they really do need the infliction of pain, utilitarian theory argues that the content of the criminal law must be informed by the happiness of the community, not the individual as such: laws and measures of government must be seek to increase the sum total of happiness in the community as a whole.(30)

      The primary example of the utilitarian rationale for restricting consensual violence is the need to maintain able-bodied men for national defense. It is on this basis that contact sports have usually been allowed, for instance, and other forms of violence, such as amputations, have been prohibited.(31) Within the context of post-1965 America, we might analogize this rationale to the need to provide free citizens who may participate in the democratic process, free from fear and historical narratives of oppression. Sadomasochism, inasmuch as it perpetuates the iconography of servitude and punishment, arguably contradicts the principle of utility as applied in this context.

      Retributive theory, on the other hand, considers only the individual on his or her own terms. In Kant’s system, “a human being can never be treated as a means to the purposes of another or be put among the objects of rights to things.”(32) The personhood and autonomy of the individual preclude this. Criminal punishment

can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him because he has committed a crime. . . . He must previously have been found punishable before any thought may be given to drawing from his punishment something of use for himself or his fellow citizens.(33)

 

In other words, crimes may only be punished on account of the moral fault of the individual as a moral agent, and not because of any grand calculus of social engineering.

      Superficially, sadomasochism might seem to be consistent with such a vision of autonomous and “self-actualizing” individuals. Similarities, however, because Kant’s vision and the gospel of our own time are disappointingly thin. Punishment is, in the first place, unavailable for the private use of the individual, any more than for the greater good of the community. Indeed, in Kant’s view, the individual owes himself moral duties of dignity and self-respect, which require him to eschew both servility and arrogance, and a final duty of self-knowledge, which requires him to known his own heart and search out his motives.

Moral cognition of oneself, which seeks to penetrate into the depths (the abyss) of one’s heart which are quite difficult to fathom, is the beginning of all human wisdom. For in the case of the human being, the ultimate wisdom, which consists in the harmony of a human being’s will with its final end, requires him to remove a obstacle within him (an evil will actually present within him) and to develop the original predisposition to a good will within him which can never be lost.(34)

 

Such duties, which are really the dictates of philosophy from Socrates down,(35) are inconsistent with the dark fantasies of sadomasochism and cannot be harmonized thereto. Sadomasochism promotes the brutalization and dehumanization of one human being at the hands of another; its playful confounding of pain and pleasure is the sexual equivalent of sophistry, not self-examination.

      Furthermore, sadomasochism is arguably inconsistent with Kant’s major exception to his principle that each human being is an end in himself—marriage rights. In sexual intercourse, “a human being makes himself into a thing, which conflicts with the right of humanity in his own person.”(36) For Kant, this implies that sex must be characterized by equality and mutuality, values which sadomasochism explicitly undermines. Sexuality is not only legitimate only within marriage, but it is only truly possible within marriage: “that while that other person is acquired by the other, as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality.”(37) Although Kant was not privy to our modern biology, we might perhaps consider this exception, whereby a human being in converted into a thing, to be explained by the biological imperative of accessing the DNA of the other in procreation.

      As an aside, I feel compelled to observe that the usual juxtaposition and dichotomy of utilitarian with retributivist rationales is intellectually problematic. This dichotomy tends to define individual and social goods in competition with one another and, indeed, as mutually exclusive in extremis. I suggest that what is missing here is an appreciation for the only partially teleological character of the utility principle. Utilitarianism fails to be perfectly teleological inasmuch as it admits into its calculus no truly infinite or transcendental good. Accordingly, it, just as Nazi Germany or Orwell’s dysutopia, stands vulnerable to the charge that there is some end, some good active in the universe beyond society as such. For the children of 1968, this good may very well be some cosmic coition, in whose name they may, following De Sade, choose to rebel against the social good and their own individual reason. And yet, can we not conceive of a good, greater than society’s, greater than which cannot be conceived? For we merely choose, as a social convention, the historical construct of 1648, not to discuss that Good in the context of the criminal law, even when deontological theory hands us its little imago on a silver platter.(38) So I can only observe that in an older and perhaps wiser time, philosophers thought that there was, properly, no conflict between the external good of society and the good will of the individual, as both corresponded, as macrocosm to microcosm, on a scala naturae to God as Lawgiver and Judge, whose representative the Monarch in this world was, and who, in turn, in his person united our retributive and utilitarian justifications for punishment.