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MIDWEST STUDIES IN PHILOSOPHY

Midwest Studies in Philosophy, XXXVI (2012)

Beyond Bad: Punishment Theory

Meets the Problem of Evil1
LEO ZAIBERT

When people speak of “good and evil” they often use “evil” merely as a synonym
of “bad,” as an antonym of “good.”2 On other occasions people speak of “evil
befalling someone,” and then “evil” typically means “misfortune.” When people
wonder about the existence of evil in the world, the question tends to concern why
there is suffering in the world, or why bad things happen. People often talk about
the “lesser of two evils”—indeed, the “lesser evil” is a common legal (and moral)
defense.3 Moreover, people often call other people, or their motives, emotions, or
plans, evil. While I have nothing against those uses of “evil,” I am not here con-
cerned with any of them. I am only interested in exploring the issue of whether or
not evil can be taken to refer to a particular, qualitatively unique form of wrong-
doing, different from the merely bad. I am only interested in evil actions.
It is not conceptual analysis alone that motivates me: if a distinction between
bad acts and evil acts is granted, some guidance regarding how to respond to the
latter would be welcome. After all, our theories of how to respond to wrongdoing
presuppose but one form of it. This unitary form of wrongdoing admits of degrees,
and it is variegated within itself (say, you could commit wrongs against people, or
against property), but the assumption is that wrongdoing is essentially one single

1. Thanks are due to Felmon Davis, John Kekes, and, above all, Anna Schur.
2. See for example, most authors compiled in Amélie Oksenberg Rorty, ed., The Many Faces
of Evil (London: Routledge, 2001).
3. Section 3.02 of the Model Penal Code justifies agents bringing about an “evil” while
believing that this is necessary to avoid a “greater harm or evil.” The drafters of the code equate
“evil” to “harm”—as we shall see, this is a frequent, and unhelpful, move.

© 2012 Wiley Periodicals, Inc.

93
94 Leo Zaibert

phenomenon. Murder, for example, is more serious than theft, because it is more
harmful; similarly, genocide is more serious than murder, again because it is more
harmful—but these are all wrongs in essentially the same sense. Often, the term
“evil” functions merely as an intensifier: when something is extremely bad, then we
call it evil. Murder would count as evil when contrasted against theft, but not when
contrasted against genocide. Perhaps this deflationary and relativistic account of
evil may turn out to be ultimately correct: perhaps that is really all there is to our
use of the term evil. I will, however, resist this conclusion, and will instead entertain
the possibility that “evil” does capture a form of wrongdoing different from the
merely bad. And I will discuss the problem of how to react to evil thus understood.
Given these two goals (the analytical and the normative), the paper shall
proceed in a somewhat circuitous way: my discussion of evil as such is book-ended
by a discussion of why the problem of evil is relevant for punishment theory. So,
first, I will argue that the normative question just described appears to pose
problems for retributivists alone (as opposed to consequentialists), but that this is
a point in retributivism’s favor. Second, I will engage with an influential effort to
understand evil—Hannah Arendt’s famous views on the Eichmann’s trial. Despite
some of its deep insights, I will argue that ultimately Arendt’s view on evil is rather
obscure, and, in a sense, defeatist—a defeatism shared by another influential
author, Joel Feinberg. Third, I turn my attention to more systematic treatments of
evil—Claudia Card’s and, above all, John Kekes’s—and suggest that they too face
difficulties. Fourth, I will suggest that common to all these accounts is a failure to
sufficiently engage with a certain pointlessness of evil actions. Having developed
some of the consequences of this pointlessness, I return to the normative discussion
of our response to evil, and suggest, in a brief epilogue, that retributivism is better
equipped to deal with evil than any alternative.

1. METHODOLOGICAL PRELIMINARIES

In addition to reiterating that unless otherwise noted, by “evil” I mean “evil

action,” two caveats are in order. First, I approach evil in a wholly secular way; my
entertaining the possibility that evil is different from bad is not tied, and in fact it
is opposed, to the supposition that there are satanic or otherwise supernatural
sources of evil. Second, and perhaps more poignantly, by distinguishing evil from
merely bad, I do not aim to minimize, trivialize, or in any way excuse or justify, the
merely bad. My use of “merely” aims only to emphasize that the analysis of evil
must contain something extra not found in the analysis of bad.A few examples may
help clarify what I have in mind.
Consider someone who decides to rob his neighborhood liquor store, but
who, after emptying the cash register and carrying as much booze as he could,
decides to disfigure the attendant’s face with a knife.4 Robbing the store is bad, but
disfiguring the attendant’s face is a better candidate for being evil. It is important,
however, to warn from the start against thinking that the reason why the disfiguring
is a likelier candidate to being evil than the robbery is because it is more harmful.
4. I owe this example to Felmon Davis.
 Punishment Theory Meets the Problem of Evil 95

In her insightful “The Nature of Evil,”5 Eve Garrard discusses the following
example: “a tyrannical state executes by firing-squad a young dissident; and then
bills the grieving relatives for the cost of the bullet.”6 Examples like Garrard’s
suggest that the amount of harm that actions produce may not be crucial in
determining whether or not they are evil: “clearly the main disvalue [harm] pro-
duced in this case is the killing of the young man. But it is the charging of the bullet
that is more likely to strike us as evil.”7 Obviously, the mere charging for the price
of a bullet, taken in isolation, is not evil—but it appears so when it follows the
murder. Evil actions supervene on bad actions—a point to which I will return later
in the paper. Consider a harrowing, writ-large version of this sort of case.
On November 9 and 10 of 1938, significant numbers of German citizens,
instigated by their Nazi leaders, carried out a notorious pogrom against German
Jews, the infamous Kristallnacht. Perhaps no other attack on Jews has been so
systematically reported—by professional journalists and foreign diplomats sta-
tioned in Germany at the time, and by ordinary citizens. Time and time again,
reports indicated “an uncontrollable lust for destruction and humiliation of the
victims on the part of the perpetrators.”8 The same sorts of things were repeatedly
reported from the big cities to the smallest towns: “the sadistic brutality of the
perpetrators, the shameful reactions of some of the onlookers, the grins of others,
the silence of the immense majority, the helplessness of the victims.”9 The vast
majority of Jewish synagogues in Germany (and in Austria)—hundreds—were
either partially or completely destroyed, thousands of stores owned by Jews
were ransacked, and Jewish cemeteries were profaned. More than 30,000 Jews
were abducted from their homes and sent to concentration camps. About ninety
deaths were confirmed by the Nazi regime during Kristallnacht itself, and among
those hundreds of thousands who were not able to escape Germany, the majority
perished within the next few years in extermination camps.10
All of this is, needless to say, extraordinarily bad. But consider the conference
of high-ranking Nazi officials that Herman Goering convened only a couple of days
after Kristallnacht, which has become infamous in its own right for “its sadistic
inventiveness.”11 At this meeting it was decided that “the Jews would bear all the
costs of repairing their businesses”: it was decreed that “the Jews of German
citizenship will have to pay as a whole a contribution of 1,000,000,000 RM to the
German Reich.”12 Having destroyed Jewish stores, cemeteries, synagogues, and
lives, for the Nazis to then force their very victims to pay a fine for this destruction,
strikes me as evil, and not just as bad (no matter how incredibly bad Kristallnacht

5. Eve Garrard, “The Nature of Evil,” Philosophical Explorations 1 (1998): 43–60.

6. Garrard, “Nature of Evil,” 45.
7. Garrard, “Nature of Evil,” 45.
8. Saul Friedländer, Nazi Germany and the Jews: Volume 1: The Years of Persecution, 1933–
1939 (New York: Harper Collins, 1997), 277.
9. Friedländer, Nazi Germany, 278
10. In addition to Friedländer, see Martin Gilbert, Kristallnacht: Prelude to Destruction (New
York: Harper Collins, 2006).
11. Friedländer, Kristallnacht, 281.
12. Friedländer, Kristallnacht, 281.
96 Leo Zaibert

itself undoubtedly was). Like in Garrard’s example, it is clear that the destruction,
indignity, and death which took place during Kristallnacht was extraordinarily
more harmful than the fine—but the fine which followed Kristallnacht is a better
candidate to being evil (even if much less harmful than Kristallnacht).13
These examples help sketch what I take to be a difference between bad and
evil: while evil supervenes on the bad, it appears qualitatively different from it. Let
me now explain what I mean by retributivism, and why I think both that evil poses
a problem for it, and why this is a good thing. Roughly, retributivism is the view that
deserved punishment is intrinsically good.14 Thus, deserving a certain a punish-
ment, is, if not quite a sufficient condition for rendering the infliction of such
punishment justified, at least a very important consideration. A precondition of
retributivism, then, is that we understand wrongdoing, so as to make the punish-
ment fit it: and I will refer here to efforts to understand wrongdoing as retributiv-
ist.15 By focusing on desert, the retributivist makes short shrift of consequentialist
considerations: beyond the very act of administering justice, she does not care
much about the good consequences that punishment may bring about. The retribu-
tivist cares little about rehabilitation, deterrence, incapacitation, etc. The retribu-
tivist is not, ultima facie, necessarily opposed to achieving these other ends, but she
thinks that they do not play too crucial a role in the justification of punishment
itself.
The retributivist is inclined to believe that if someone is guilty of wrongdo-
ing, then she should be punished—and punished in accordance with her desert. In
theory, then, the position of the retributivist is straightforward: as the seriousness of
an offense increases, so, ceteris paribus, increases the amount of the deserved
punishment. (Assume, for the time being, that determining degrees of seriousness
of offenses and of desert are themselves unproblematic endeavors.) A chart depict-
ing the retributivist position in which the severity of the punishment was registered
on the vertical axis, and the seriousness of the offense on the horizontal axis, would
have a 45-degree line traveling infinitely northeast. In due course, however, I will
argue that retributivism is more complicated, but this is the gist of the position.
In sharp contrast, consequentialists think that what justifies punishment is
not that it is deserved but that it brings about some good ulterior consequence,
such as incapacitation, rehabilitation, and deterrence. Two tokens of the same act
type, say, murder, could, on consequentialist approaches, be punished vastly differ-
ently, assuming that the consequences would in each case be vastly different too. A
consequentialist may thus recommend that Tom be sentenced to life in prison for
having committed a minor crime, if, say, he happens to be universally hated.
Perhaps sentencing him to life in prison can be optimally felicific, and thus recom-
mended by consequentialism. A very severe punishment, say, life in prison for

13. Evidently, Kristallnacht itself contained a combination of both bad and evil actions. For
the purposes of the example I am focusing only on the bad of Kristallnacht.
14. See Leo Zaibert, Punishment and Retribution (Aldershot, UK: Ashgate, 2006), and the
references therein. For a recent attack on retributivism which nonetheless admits that this is the
best version of it, see Victor Tadros, The Ends of Harm (Oxford: Oxford University Press, 2011).
15. Retributivism thus understood is unrelated to being “tough on crime,” lex talionis, or legal
moralism.
 Punishment Theory Meets the Problem of Evil 97

speeding, surely will significantly deter speeding in the future. Conversely, consider
Susan, who committed a serious crime, but who now represents no threat, and
whose punishment will not even be known (thus offering no deterrence effects,
etc.): to punish her because she deserves it would strike the consequentialist as
indefensible—in fact, as downright barbaric.16
It should then be clear why assuming that evil is an independent form of
wrongdoing poses a problem for retributivists and not for consequentialists. For
only retributivists wish that there be a fit between wrongdoing and our response to
it, and it is unclear what would be a fitting response to evil. It is not even clear
whether the talk of desert is intelligible in the case of evil—for we are after all
assuming that evil and bad are really different. What is the fitting response to
charging grieving parents for the cost of the bullet that killed their son? What is the
fitting response regarding the Nazis who levied a fine on the Jewish community in
order to pay for the damages that those very Nazis unjustifiably inflicted on them?
Consequentialists are uninterested in these questions about fittingness
because they are uninterested in desert—desert is after all a form of fittingness.17 If
punishing evil actors could, say, effectively deter others from engaging in unwanted
behavior, then we should punish; otherwise we should not. This sort of attitude has,
understandably, given rise to the (in)famous objection that consequentialists may
recommend “punishing an innocent,” when doing so would be conducive to, say,
deterrence. Just as consequentialists may on occasion recommend “punishing an
innocent,” they can also recommend not punishing a very bad or an evil action.
Consequentialists can go about their business (to deter, incapacitate, etc.), or not,
whether they are responding to evil or to bad.
Since fittingness is intimately linked to justice, and since only retributivists
care about fittingness, they are also the only punishment theorists decisively con-
cerned with justice.18 In dismissing the difficult problem of giving people what they
deserve, consequentialists are exposed in their cavalier sidestepping of the norma-
tive discussion of justice. Struggling (conceptually) with evil is a problem worth
having. Consider one example. Responding to objections against his consequen-
tialism,19 Victor Tadros presented the following thought experiment: Hitler has
ended up on an otherwise desert island, and there is no way he would ever be found
or that he could be punished at all. Tadros wonders what would be better: that
Hitler enjoys beautiful weather, or that he is constantly sneezing due to bad
weather. Under these conditions, Tadros prefers it to be sunny—there is nothing to
be gained by Hitler’s suffering.Waxing Benthamite,Tadros suggests that those of us
who, assuming these were really the only two options, would rather see Hitler

16. See Tadros, Ends of Harm, 78 and passim.

17. See Leo Zaibert, “The Fitting, the Deserving, and the Beautiful,” Journal of Moral
Philosophy 3, no. 3 (2006): 331–50.
18. Geoffrey Cupit, Justice as Fittingness (Oxford: Clarendon Press, 1996).
19. The text containing Tadros’s responses was distributed among the participants of a
conference devoted to his book which took place on March 30 and 31, 2012 at Rutgers University,
and is on file with the author. For my reaction to Tadros’s views see Leo Zaibert, “The Instruments
of Abolition: Or Why Retributivism is the Only Justification of Punishment,” Law and Philosophy
(2012, forthcoming).
98 Leo Zaibert

spending his life suffering, are barbaric. In contrast, I consider consequentialist

positions, like Tadros’s, morally myopic—if not downright blind.20 Whether some of
Hitler’s actions were evil or bad is irrelevant for the consequentialist Tadros—
Hitler should bask in the sun.
This sort of thought experiment is less far-fetched than it may initially
appear. Consider Ricardo Klement, who lived an innocuous and law-abiding life in
Argentina until he was seized by Israeli agents and brought to trial in Jerusalem.
Klement was, of course, Adolf Eichmann, who, like many other Nazis, had changed
his name after the war in order to escape justice. Metaphorically, Eichmann inhab-
ited Tadros’s island. Imagine that Eichmann had succeeded in faking his death, had
gone on living his law-abiding life in Argentina, and that he would have never been
exposed as Eichmann. Under these circumstances, why not let him enjoy life, like
Tadros’s Hitler in his island?21 For Tadros, and for consequentialists generally, if
there is nothing to be gained by deserved suffering, then we should oppose it. Only
retributivists would recommend punishing Eichmann as a matter of principle, as a
matter of justice. Moreover, only retributivists are interested in understanding
cases such as Eichmann’s. Just as they care about understanding badness, retribu-
tivists (alone) would care about understanding evil—understanding wrongdoing is
a precondition of doing justice in its wake.
Eichmann’s case is a good segue into my discussion of evil as such. As
Feinberg has put it: “in our effort to understand pure evil, we naturally begin by
analyzing Adolf Eichmann.”22 In discussing Eichmann’s case, Feinberg focused on
Arendt’s views; and I will do the same here. Insofar as both Feinberg and Arendt
were genuinely interested in understanding evil (in order to then determine what
is to be done to evildoers), they count as retributivists in my broad sense here.
Arendt wanted to see justice served, and she grappled with Eichmann’s case
because she did not know what exactly justice demanded in that case.23 But I will
argue that Arendt’s engagement with evil, illuminating as it may be, ultimately
disappoints—as does Feinberg’s.

2. EVIL: BANAL AND OTHERWISE

Much ink has been spilled over Arendt’s (in)famous phrase, “the banality of evil,”
which was both the subtitle of her famous book on Eichmann, and one of its most

20. Tadros believes that recognizing the wrongness of our actions is intrinsically good, so
assume that Hitler had either already recognized this before arriving in the island, or that he could
never recognize it.
21. Assume, again, that Eichmann had recognized the wrongness of what he did before
arriving in Argentina, or that he could never recognize it.
22. Joel Feinberg, Problems at the Roots of Law (Oxford: Oxford University Press, 2003), 184.
23. Arendt even entertained the possibility that justice might have been better served had
Eichmann been executed without a trial, as Sholom Schwartzbard executed Simon Petliura in 1926
Paris. For an insightful treatment of this under-researched case, see Anna Schur,“Shades of Justice:
The Trial of Sholom Schwartzbard and Dovid Bergelson’s Among Refugees,” Law and Literature
19 (2007): 15–43.
 Punishment Theory Meets the Problem of Evil 99

prominent themes.24 Arendt has admitted that “probably the most powerful
motive” behind her decision to report on Eichmann’s trial was “the wish to expose
[herself]—not to the deeds, which, after all, were well known, but to the evildoer
himself.”25 In anticipation of her face-to-face encounter with a high-ranking Nazi
official such as Eichmann, Arendt expected to see the devil personified—a really
malevolent and cruel monster. Instead, however, what Arendt thought she saw was
a mediocre and drab parvenu—a mindless, cliché-ridden bureaucrat. And Arendt
found this “banality of evil” to be “word-and-thought-defying.”26
I must confess that when, in my youth, I first read Arendt’s report, I was
terribly disappointed.This disappointment was not the result of my giving credence
to those sensationalist and unfair accusations against Arendt according to which
she sought to blame the victims of Nazi atrocities, or to trivialize either the mag-
nitude of those atrocities or the suffering of the victims. I was disappointed because
I thought that even if, arguendo, one assumed that Arendt was right in her char-
acterization of Eichmann’s psychology,27 Arendt’s surprise at discovering Eich-
mann’s banality was bafflingly naive. Banal wrongdoers are utterly common; they
are daily tried in courtrooms all over the world. Their existence hardly seemed
either “word- or thought-defying.” Many ordinary people regularly do awful
things—and this is as true of the Nazis as of anyone else.
What was, I then wondered, so interesting about banality in Eichmann’s
case? Why was Arendt so initially wedded to such a romanticized—if not down-
right kitsch—version of a Nazi: was she expecting Eichmann to have horns? Why
did she believe that being a boring, unimaginative bureaucrat was in any way at
odds with doing bad things?28 I have now come to think that the best way of
understanding Arendt’s views is to realize that her whole evaluation of the Eich-
mann trial is premised, precisely, on the existence of a distinction between the
merely bad and the evil.29 I would like to argue that it was because Arendt thought
that what Eichmann did was evil (and not merely bad), that she found his “banal-
ity”30 so “word-and-thought-defying.” Had Eichmann committed merely bad
deeds, then she would not have been shocked about his alleged banality.

24. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York:
Penguin, 1963 [1994]).
25. Hannah Arendt, The Jewish Writings, ed. Jerome Kohn and Ron. H. Feldman (New York:
Schocken, 2007), 475.
26. Hannah Arendt, Eichmann in Jerusalem, 252.
27. I will make this assumption against good evidence to the contrary, only to explore the
theoretical potential of Arendt’s view. Even if Eichmann himself was not what Arendt took him to
be, surely some Nazis were mere cogs.
28. For a non-naïve, and richer, account of another “banal” Nazi, see Catherine Epstein,
Model Nazi: Arthur Greiser and the Occupation of Western Poland (Oxford: Oxford University
Press, 2010).
29. Perhaps this distinction can be seen as the earlier distinction between “limited” (or
“ordinary”) evil, and “radical evil,” which she discussed in The Origins of Totalitarianism (New
York: Harcourt, 1973), 437–79. But I wish to resist here both the premature discussion of different
types of evil, and, above all, linking evil (or “radical evil”) to totalitarianism or to the superflu-
ousness of individuals.
30. The expression “banality of evil” has itself become an extraordinarily abused cliché. For
someone who despised clichés as much as Arendt did, this must have been very distressing.
100 Leo Zaibert

Of course, one can redirect the question about the romanticizing of the
merely bad to the romanticizing of the evil. For example, with Dostoevsky, one
could wonder why the devil himself should have horns. As Geoffrey Scarre use-
fully reminds us, Dostoevsky “represents Satan himself as scarcely demonic.
When Ivan Karamazov meets the devil, he confronts ‘a slightly ridiculous, slightly
vulgar figure afflicted with rheumatism’ and ‘wearing out-of-date clothes’.”31 In
fact, the devil tells Ivan: “you’re angry with me that I have not appeared to you
in some sort of red glow, ‘in thunder and lightning’ [ . . . ]. You’re insulted, first,
in your aesthetic feelings, and, second, in your pride: how could such a banal
devil come to such a great man.”32 So we could wonder why even evil is taken to
be inconsistent with banality, as we did in the case of the merely bad. But since
we do not yet know what evil is, we cannot yet accept this parallel: perhaps there
are reasons to suspect that the devil does have horns, and evil actions are indeed
in tension with banality.
In a by now famous letter to her friend Karl Jaspers, Arendt admits that she
found it very difficult to understand Nazi crimes, because they “explode the limits
of the law; and that is precisely what constitutes their monstrousness [ . . . ] this guilt,
in contrast to all criminal guilt, oversteps and shatters any and all legal systems
[ . . . ]. We are simply not equipped to deal, on a human, political level, with a guilt
that is beyond crime [ . . . ] and an innocence that is beyond goodness or virtue. This
is the abyss that opened before us as early as 1933 (much earlier, actually, with the
onset of imperialistic politics).”33 The talk of the abyss seems to have started as
soon as Arendt began thinking about the Nazis; as Steven Aschheim points out,
upon learning of the existence of Auschwitz, Arendt affirmed: “it was really as if an
abyss had opened. . . . This ought not to have happened. And I don’t mean just the
number of victims. I mean the method, the fabrication of corpses and so on.
Something happened there to which we cannot reconcile ourselves. None of us
ever can.”34 What Arendt registers here is her inability to understand Nazi atroci-
ties, a topic to which I shall return in due course.
Arendt thus believed that there is a qualitative difference between the sort of
things the Nazis did (evil), and other more mundane crimes (the merely bad).
Admitting (something like) this distinction is crucial to appreciating Arendt’s
views on the trial. Arendt thought that it was a “misunderstanding” to think “that
a direct line existed from the early anti-Semitism of the Nazi Party to the Nurem-
berg Laws and from there to the expulsion of Jews from the Reich and, finally, to
the gas chamber.” It was a mistake to think that the “horror of Auschwitz” was “not

31. Geoffrey Scarre, After Evil: Responding to Wrongdoing (Aldershot, UK:Ashgate, 2004), 6.
32. Fyodor Dostoevsky, The Brothers Karamazov (New York: Farrar, Straus and Giroux,
2002), 647. Dostoevsky thus predated Arendt in the talk of the banality of evil. Dostoevsky
had interesting things to say not only regarding evil, but also regarding punishment: see Anna
Schur, Wages of Evil: Dostoevsky on Punishment (Evanston, IL: Northwestern University Press,
2012).
33. Quotation taken (including ellipses), from Steven E. Aschheim’s illuminating “Nazism,
Culture and The Origins of Totalitarianism: Hannah Arendt and the Discourse of Evil,” New
German Critique 70 (1997): 117–39, at 131.
34. Aschheim, “Nazism, Culture,” 126.
 Punishment Theory Meets the Problem of Evil 101

much more than the most horrible pogrom in Jewish history.” This misunderstand-
ing, she thought, “is actually at the root of all the failures and shortcomings of the
Jerusalem trial.”35 “None of the participants [in Eichmann’s trial] ever arrived at a
clear understanding of the actual horror of Auschwitz, which is of a different nature
from all the atrocities of the past.” The wrongs of the Nazis were unique: “politi-
cally and legally [ . . . ] these were ‘crimes’ different not only in degree of serious-
ness but in essence.”36
Arendt’s talk of the uniqueness of Nazi actions does not come without
some dangers. Famously, some feared that this sort of talk may unwittingly
endow evil acts with some grandiosity—perverse grandiosity indeed, but still
grandiosity. A series of letters attest to a preoccupation that both Arendt and
Jaspers (among others) shared, whereby Arendt’s epic talk may be seen as unwit-
tingly sublimating Nazi evil, turning it into some sort of “satanic greatness.”37
There is a danger that in rendering a way of doing bad, evildoing, so special, one
may unwittingly aggrandize it.
Aschheim, for example, insightfully discusses ways in which Arendt’s treat-
ment of the evil that Eichmann and the Nazis carried out could be perceived as
“operatic,” “metaphysical,” “biblical,” “ecstatic,” and he understandably fears that
at times her treatment may lead to “overblown analysis.”38 Aschheim’s report of
how Jaspers responded to Arendt is eloquent: “you say that what the Nazis did
cannot be comprehended as ‘crime’—I’m not altogether comfortable with your
view, because a guilt that goes beyond all criminal guilt inevitably takes on a streak
of ‘greatness’—of satanic greatness—which is, for me, as inappropriate for the
Nazis as all the talk about the ‘demonic’ element in Hitler.” And Jaspers continued:
“the way you express it, you’ve almost taken the path of poetry.”39
To be sure, while Arendt may have indeed attributed a streak of greatness to
Nazi crimes, she nonetheless refused to leave them unpunished. As she discussed
what she took to be “the most common argument” against Eichmann’s execution
on orders of the Jerusalem court, she explained that “Eichmann’s deeds defied the
possibility of human punishment.” Arendt added that “it was pointless to impose
the death sentence for crimes of such magnitude” though, of course, this “could not
conceivably mean that he who had murdered millions should for this very reason
escape punishment.”40 Arendt contradicts here her earlier view that what was
unfathomable about Nazi crimes was not only the harm that they produced, but its
method (the fabrication of corpses). In accordance with the earlier view, the
alleged pointlessness of the death sentence should not to be linked now to the
magnitude of Eichmann’s crimes.
Arendt agreed with the court’s judgment: Eichmann should hang. But she
disagreed with the court’s rationale. Instead of recognizing that Eichmann deserved

35. Arendt, Eichmann in Jerusalem, 267.

36. Arendt, Eichmann in Jerusalem, 267.
37. Aschheim, “Nazism, Culture,” 132.
38. Aschheim, “Nazism, Culture,” 129–30.
39. Aschheim, “Nazism, Culture,” 131.
40. Arendt, Eichmann in Jerusalem, 250. I set aside Arendt’s odd suggestion that this
problem was somehow related to the fact that it was Israelis who executed Eichmann.
102 Leo Zaibert

to die, Arendt suggested that the court should have “dared” to address him in the
following terms: “just as you supported and carried out a policy of not wanting to
share the earth with the Jewish people and the people of a number of other
nations—as though you and your superiors had any right to determine who should
and who should not inhabit the world—we find that no one, that is, no member of
the human race, can be expected to want to share the earth with you. This is the
reason, and the only reason, you must hang.”41
So, the fact that no one can be expected to want to share the earth with
Eichmann is the only reason he should die? Why is this a good reason at all, let
alone the only reason for the verdict? Why not insist that Eichmann should get
what he deserves, and that he deserved to die? The most charitable answer that can
be given on Arendt’s behalf is to stress that we cannot easily give Eichmann what
he deserves, because of “the abyss”: what he did goes beyond ordinary badness, and
retributivism can only deal with ordinary badness. But it is one thing to wonder
whether some acts (evil acts) are beyond the talk of desert, and another one to
assume that this is the case, as Arendt too quickly does. This rushed shift strikes me
as something of an abdication, and is in need of an explanation.
Arendt’s suggestion as to how the court should have “dared” to address
Eichmann, is offered immediately after she rejects, because “barbaric,” any appeal
to punish Eichmann on retributivist grounds.42 But Arendt was understanding
“retributivism” in an odd way: as an overly vindictive, and blunt, tool to deal with
wrongdoing. In my sense of retributivism, the spirit of Arendt’s book, if not the
letter, is retributivist through and through: she wishes to understand what Eich-
mann did, in order to react justly to it.The problem is that since Arendt admits both
that Eichmann did horrible things and that we cannot understand these things
fully, it is hard to understand why, or at least how, we should punish him. Whether
treating Eichmann justly entails giving him what he deserves remains an open
question: What does justice demand in the case of evil?
Feinberg, a much less “operatic” author, surely much less prone to “over-
blown analyses” than Arendt, and whose retributivism is even more obvious than
Arendt’s, appears to abdicate in ways strikingly similar to Arendt’s. Apropos his
discussion of Arendt’s views on the Eichmann trial, Feinberg tells us: “genuinely
evil persons are like wild beasts or mad dogs.”43 While Feinberg is of course aware
that this position is “not popular with philosophers,” he nonetheless believes that
“there is surprisingly much to be said” for it.44 And Feinberg then adds that when
dealing with evil people, we should dismiss desert, and instead treat them like wild
beasts: “we do not hate the wild bear, nor waste our moral judgment on her. There
is just one thing to do. Shoot her and get it over with, in the same spirit as that in
which we would cope with other natural calamities—fires, storms, slides, quakes,
and floods.”45 Just like people are not expected to share the earth with Eichmann,
they are not expected to want quakes and floods.

41. Arendt, Eichmann in Jerusalem, 279.

42. Arendt, Eichmann in Jerusalem, 277.
43. Feinberg, Problems at the Roots of Law, 190.
44. Feinberg, Problems at the Roots of Law, 190.
45. Feinberg, Problems at the Roots of Law, 190.
 Punishment Theory Meets the Problem of Evil 103

If this is the normative consequence of the distinction between bad and evil,
I would rather abandon it altogether. I think, however, that we can preserve the
distinction and avoid both the mysticism of the abyssal talk and the defeatism of
not “wasting our moral judgment.” But this involves further discussion of the
descriptive question as to how exactly evil differs from the merely bad.

3. THE ELUSIVE ANALYSIS OF EVIL

In spite of my dissatisfaction with Arendt’s (and Feinberg’s) recommended

response to evil, I agree with a couple of Arendtian insights. One of them I have
already mentioned; although Arendt wavered on this point, I take it that her view
is that when discussing the incomprehensibility of Nazism, we do better not to look
just at the magnitude of the harm: “. . . and I don’t mean just the number of victims.
I mean the method, the fabrication of corpses and so on.”46 The second Arendtian
insight concerns the motivational makeup of at least some evil people; that evil-
doers like Eichmann need not have particularly malevolent motives. She states:
“Eichmann was not Iago, and not Macbeth [ . . . ]. Except for an extraordinary
diligence in looking out for his personal advancement, he had no motives at all.
And this diligence in itself was in no way criminal; he certainly would never have
murdered his superior in order to inherit his post.”47
Matters are considerably more complicated when Arendt claims that “it was
sheer thoughtlessness—something by no means identical with stupidity—that pre-
disposed [Eichmann] to become one of the greatest criminals of that period,” and
that there exists a “strange relationship between thoughtlessness and evil.”48
Famously, Arendt connected this thoughtlessness to the dehumanizing machinery
of totalitarianism, but she said little about how this “strange” relationship could
help us distinguish evil from bad in general, or about whether evil could exist
outside the political context. While I will eventually suggest that something resem-
bling thoughtlessness is truly crucial, I want to first discuss a more diaphanous
approach to evil, and show why, albeit for different reasons, it too fails.
While Arendt deemphasizes the importance of harm and malevolent moti-
vation, this other approach gives great importance to the harm evil actions produce
and to the specifically “malevolent” motives of evildoers. Early in his career, for
example, Kekes sought to present an account of evil in a “wide” sense, whereby
“contingency, indifference, and destructiveness all qualify as forms of evil because
they are various antitheses of the good.”49 Moreover, Kekes explicitly acknowl-
edged the existence of both moral and non-moral evil.50 The essence of evil for the
early Kekes is the occurrence of “undeserved harm”; if the undeserved harm is the
result of, say, an earthquake, then this is a non-moral evil; whereas if your unde-
served harm is the result of my actions, then this (if other conditions obtain) is a
moral evil. Independently of the fact that this account equivocates between two
46. Arendt, Eichmann in Jerusalem, 126.
47. Arendt, Eichmann in Jerusalem, 287.
48. Arendt, Eichmann in Jerusalem, 288.
49. John Kekes, Facing Evil (Princeton, NJ: Princeton University Press, 1990), 45 and passim.
50. Kekes, Facing Evil, 45 ff.
104 Leo Zaibert

distinct senses of evil—evil as something we do, and evil as something that happens
to us—I find it unhelpful for my purposes here. I want an account of evil because
I want to do justice in its aftermath—and such a project makes little sense in
Kekes’s cases of non-moral evil: the suggestion that we need to do justice after
earthquakes, or diseases, seems odd—if intelligible at all.
Card’s influential view on evil, informatively dubbed “the atrocity paradigm,”
is similar regarding the emphasis on harm: in order for something to be evil, it needs
to be an atrocity. While on her account, evils “have two basic components: (intoler-
able) harm and (culpable) wrongdoing, neither reducible to the other,”51 she also
claims that it is “the nature and severity of the harms, rather than perpetrators’
psychological states,[that] distinguishes evil from ordinary wrongs.Evils tend to ruin
lives, or significant part of lives.”52 The emphasis on the amount of harm appears
incapable of explaining the examples I presented at the outset. As I have noted, the
amount of harm in these complex cases which include both bad and evil, sometimes
appears to be greater regarding the bad acts than regarding the evil acts.
More recently, Kekes has focused on evil as something that we do (rather
than as something that happens to us), and he has presented the following defini-
tion: “the evil of an action [ . . . ] consists in the combination of three components:
the malevolent motivation of evildoers; the serious, excessive harm caused by their
actions; and the lack of morally acceptable excuse for the actions. Each of these
components is necessary, and they are jointly sufficient for condemning an action as
evil.”53 While this definition constitutes a welcome departure from his early
approach, and while the clarity of Kekes’s exposition can only be lauded, I think
that his definition still fails to distinguish evil from bad.
Before discussing Kekes’s treatment of the harm of evil actions, I wish to
show how two of the “components” of his definition of evil are particularly unhelp-
ful for my purposes. Take Kekes’s third condition: “the lack of morally acceptable
excuses [and justifications, etc.].”54 Conditions such as this one can be seen as
add-ons, tacitly pertaining to the analysis of any blameworthy action whatsoever.
At best, this condition would pertain not only to the analysis of evil, but to the
analysis of the merely bad as well. At worst, the condition would be wholly
inadequate, for, as will become clear below, unlike the merely bad, evil actions
cannot be mitigated in the ways that bad actions can.
The second particularly unhelpful component of Kekes’s definition of evil
concerns motives. This discussion is interesting because where Arendt emphasized
that people without any particularly bad motivation can do evil acts, Kekes states
the opposite: malevolent motives are necessary for an action being evil.55 Let us see

51. Claudia Card, The Atrocity Paradigm: A Theory of Evil (Oxford: Oxford University Press,
2002), 4.
52. Card, Atrocity Paradigm, 3.
53. John Kekes, The Roots of Evil (Ithaca, NY: Cornell University Press, 2005), 2.
54. Kekes inexplicably speaks only about excuses here—clearly, he meant to include justifi-
cations as well.
55. Despite this difference, Arendt and Kekes make a similar mistake in focusing on motives,
to the detriment of other mental states. Intentions are more important for the determination of the
blameworthiness of actions than motives. Since I have written about this elsewhere, I will not
 Punishment Theory Meets the Problem of Evil 105

how this plays out with the aid of real-life example. Recall Tonya Harding, the
figure skater who, jealous of the success and talent of her teammate Nancy Kerri-
gan, conspired with her husband to injure her rival, so that Kerrigan could not
possibly defeat her in the forthcoming winter Olympics. It seems to me that there
is no doubt that Harding’s motives were malevolent, but even stipulating that
Kekes’s other two conditions also obtain, Harding’s act does not strikes me as
evil—and it would not have been evil had Harding actually killed Kerrigan—
contra Kekes’s definition.
Perhaps Kekes could argue that rather than presenting a difficulty to his
definition of evil, cases such as Harding actually confirm it: Harding’s action was
not evil because her motivation was not (sufficiently) malevolent. Unfortunately,
this response just pushes the question further: what is it for a motive to be malevo-
lent? If getting your skating rival out of commission by brutally breaking her leg
(or, say, by killing her) is not malevolent, I do not know what “malevolent” could
mean. Kekes faces the following dilemma. If he admitted that Harding’s action was
not evil, because while her motivation was unquestionable bad, it was not quite
malevolent, then his definition of evil would become viciously circular. “Malevo-
lent,” within the realm of motivation, would be doing just the same work that “evil”
does within the realm of action. For current purposes, “malevolent” and “evil” are
if not quite synonyms, at the very least equivalent notions. If so, then Kekes’s
account of evil could be reformulated as stating that one necessary condition for an
action to be evil is that its motivation is evil too.
If, trying to avoid this problem, Kekes suggested that actions such as Hard-
ing’s are indeed evil, then he would have extended the meaning of “evil” beyond
manageability: (almost?) every bad action would turn out to be evil—the dockets
of courtrooms all over the world are filled with cases like Harding’s. And this move
would contradict Kekes’s own view: “Evil has an ominous connotation that goes
beyond badness. It is perhaps the most severe succinct condemnation our moral
vocabulary affords, so it should not be used casually and the conditions of its
justified ascription should be made clear.”56
So our last hope is that Kekes’s appeal to “serious, excessive harm” may help
us distinguish bad from evil. This condition is in fact two conditions in one: the
harm must be both serious and excessive. Kekes clearly does not mean these two
terms as synonyms (though it is interesting that he combines them together under
one single condition). By “serious” Kekes means something quite analogous to
what Card means by “intolerable”; he tells us: “evil involves serious harm that
causes fatal or lasting physical injury, as do, for example, murder, torture, and
mutilation.”57 Kekes thus faces the by now familiar difficulty in dealing with prima

repeat my views again (see Leo Zaibert, Five Ways Patricia Can Kill Her Husband [Chicago: Open
Court, 2005]).A complete account of evil must make reference to mental states other than motives.
Card’s approach in this regard is more promising than Arendt’s and Kekes’s, insofar as she
expressly claims that given Eichmann’s intentions, “his motives scarcely matter”—he is evil
“regardless of the banality of his motives” (Card, Atrocity Paradigm, 21).
56. Kekes, The Roots of Evil, 1.
57. Kekes, The Roots of Evil, 1. While Kekes recognizes that harm need not be physical, he
nonetheless focuses on “simple cases of physical harm.”
106 Leo Zaibert

facie cases of evil which do not cause much harm, such as the ones I presented
above.
But there is a much more general objection facing any account of evil that
requires the production of harm: putative cases of evil without harm are, poten-
tially, extraordinarily numerous. Assume that X, Y, and Z, are evil acts; presumably,
attempting to do X, Y, and Z, would be evil too—and attempted evil acts need not
cause harm at all. So, if evil can be attempted, definitions of evil which focus on
harm—as Kekes’s and Card’s do—face obvious difficulties. For the possibility of
attempting evil suggests that harm (serious or not) is not even a necessary condi-
tion for evil after all.
So much, then, for the “serious harm” part of this condition; let us then turn
to excessive harm: “evildoers cause more serious harm than is needed for achieving
their ends.”58 This is much more promising, and it is in fact related to what I shall,
in the next section, suggest should be part of any plausible account of evil. Unfor-
tunately, Kekes says little about this excessiveness. And the little that he does say,
again, does not help us distinguishing evil from bad. First, the problem with
attempted evil acts just discussed obviously applies here as well: attempted evil acts
which ex hypothesi cause no harm, cause no excessive harm either. But, second,
even in cases of completed acts which cause harm, Kekes formulation seems
inadequate. Consider a hit man, Jack, who kills Jill, and imagine that all of the
conditions in Kekes’s definition of evil obtain, except that the harm is not excessive
( Jack does exactly what he needed in order to achieve his end)—then Jack’s act is
bad, not evil. But consider a second scenario identical to the first in every respect
except that now Jack also kills Susan—something Jack did not need in order to
achieve his end of killing Jill. I do not see why this “excessive harm” would
necessarily transform his bad action into an evil action.
Kekes even admits that when “evil actions are the only ways of preventing
much worse evil,”59 they are justified; sometimes we could demand that “evil be
done in order to prevent even greater evil,” and that those who behave like this
“deserve praise, not condemnation.”60 Now, in general, justified agents are not
praised for their actions (even if not blamed either): for example, killing in self-
defense, to mention the classical example of justification, is neither praiseworthy
nor blameworthy, but I will leave this problem aside. A more pressing problem is
that if evil actions can so be justified, this of course contradicts Kekes’s own view
that the harm of evil actions needs to be excessive. When a so-called “evil” action
is done because it is the only way to avoid greater evil (or greater bad?), then it
simply is not evil, for there is nothing excessive about the harm it produces.
This last problem with Kekes’s definition of evil allows me to underscore the
following important point. If something resembling excessiveness is indeed a nec-
essary condition for actions being evil (as I believe is the case), then this highlights
one concrete, crucial difference between evil actions and bad actions: evil actions
cannot be justified.

58. Kekes, The Roots of Evil, 2.

59. Kekes, The Roots of Evil, 201.
60. Kekes, The Roots of Evil, 207.
 Punishment Theory Meets the Problem of Evil 107

4. ON POINTLESSNESS

Kekes’s excessiveness of harm—the only promising bit of his definition of evil—

does not help us distinguish evil from bad. Neither does Arendt’s thoughtlessness.
What I would like to suggest is that what is special about evil actions is something
related both to thoughtlessness and to excessiveness: a certain pointlessness. Con-
sider another example. When cattle cars were insufficient for transporting victims
to extermination camps, the Nazis would use regular passenger trains. In these
occasions, victims were forced to pay the regular one-way fare for the journey (to
their certain death). As with previous examples, while being sent to a gas chamber
is obviously the most harmful, charging the fare is what strikes us as evil. But the
charging was utterly pointless: every victim was going to be dispossessed of every-
thing she owned anyhow. It is pointless not in lacking utilitarian sense, but in the
sense that it defies understanding, that it is hard to wrap our minds around it: not
in the sense that it is excessively harmful, and not in the sense of it being somehow
necessarily “thoughtless.”
Evil, as an independent category of wrongdoing, is constituted by those acts
which seem unintelligible. Part of what may justify the claim that the Nazi holo-
caust was unique may have to do with the amount of evil it generated. Doubtlessly,
all sorts of other genocides have occurred, but perhaps none other was evil to the
extent that the holocaust was—in the sense of all the systematized pointlessness (in
the sense alluded here) that it exhibited. This is neither to deny that these other
genocides have been extraordinarily bad nor to suggest that in their not being as
evil as the holocaust, their perpetrators thereby necessarily deserve less condem-
nation or punishment, as I will argue in the next section. Moreover, this is not to
endorse Arendt’s view that evil thus understood was invented by, or somehow
linked to, totalitarianism.61
Imagine, however, that the Nazis charged their victims the one-way fare
attempting to trick them into thinking that they were not traveling to their certain
death, just as, for example, they asked them to remember the stall number were
they were leaving their clothes before going to “the showers” in Auschwitz. Making
the victims believe that they were going to take a shower (rather than into a gas
chamber) is horrible, but not pointless—there is a perverse strategic point to it. If
charging the one-way fare was done for similar reasons, then it too would have had
a point, and thus would not have been evil.To the extent that their charging the fare
was partly a strategy seeking to keep the transports running smoothly and partly
pointless, then it was partly bad and partly evil.
It should be obvious that pointlessness can attach to actions which are not
terribly harmful in themselves. Scarre argues compellingly that while the harm
brought about by technologically advanced nations may be larger scale than the
harm of earlier times, they are equally evil. “When a sixteenth-century Japanese
samurai warrior tested his new sword by slicing through a dispensable peasant, or
nineteenth century Amazonian rubber-planters used the indigenous population for
target practice, they showed an equal lack of awareness of what Robert Nozick has

61. Arendt, The Origins of Totalitarianism, 459, and passim.

108 Leo Zaibert

called the ‘moral pull’ of their victims.”62 To use humans as blade-sharpeners, or as

training targets are clearly pointless activities—for one could easily find other
sharpeners and other targets: what is the point of ending a human life?
What begins to emerge, then, is that for an action to be evil, it needs, among
other things, to be pointless. Evil acts differ from the merely bad in that they exhibit
a very high degree of pointlessness. This pointlessness is consistent not only with
different degrees of harm, but also with the presence of fully “malevolent motives”
(as in Kekes’s account) and with “no motives at all” (as in Arendt’s account). The
pointlessness, moreover, could be exhibited even at the stage in which evil acts are
only being attempted—thus avoiding the problems Kekes faces in his reliance on
excessive harm. Pointlessness can attach as much to action as to thought.
In suggesting that evil actions exhibit pointlessness, I am thereby suggesting
that merely bad acts have a point. And this latter suggestion may seem worrisome:
as if I were somehow excusing or justifying the merely bad. But their “having a
point” does not diminish our condemnation of those who do them. To say, for
example, that we can see the point of the Nazis deceiving their victims before
entering the Auschwitz “showers,” does not entail that we excuse or justify these
murders. It is merely to say that we can understand, in a non-moral sense, why they
were doing it (even if other pointless aspects of the Nazi horror remain unintelli-
gible). To say that a certain act was “merely” bad is not to say that it was less
blameworthy than an evil act, or that it caused less harm than an evil act: it is
merely to conceptually distinguish it from this other form of wrongdoing.63 We can
understand the badness of some acts, and we thus condemn and punish them
severely; nothing in our understanding them prevents us from reacting—on the
contrary. But because evil—insofar as it is pointless—defies our understanding, so
many thinkers have agonized over what exactly justice demands in its aftermath.
At this point an objection to my view suggests itself: complete pointlessness
is impossible; everything has (or can be made to have) a point—even the liquor
store robber who decides to disfigure the attendant’s face can have a point: for
example, to see blood gushing. But my view does not require complete pointless-
ness; rather, my view is that evil actions are much more pointless than bad actions.
A second objection then becomes relevant: when does an action become pointless
enough so as to defy thought? I plead ignorance. But all my view requires is that a
threshold exists, even if we do not know exactly where it falls. There may be
borderline cases, but there obviously are clear cases too: to steal candies is bad (and
not very pointless)—to charge Jews for their one-way ticket to Auschwitz is evil
(and very pointless).
Does this mean that after all the merely bad and the evil differ only in
degree? I am not sure, but I do not think so. A sufficiently pointless act is evil, even
if it could be even more pointless, or if, had it been slightly less pointless, it would

62. Scarre, After Evil, 6.

63. Michael Ignatieff, for example, has distinguished between different types of terrorism by
attending to how much pointlessness they exhibit (though he does not use this exact word). To
admit that we can understand the point of a given terrorist act, is not to thereby excuse or justify
it: one can abhor it even if one sees its point. See Michael Ignatieff, The Lesser Evil: Political Ethics
in the Age of Terror (Princeton, NJ: Princeton University Press, 2004), 83 ff.
 Punishment Theory Meets the Problem of Evil 109

have not been evil. Moreover, I am merely suggesting that pointlessness should be
part of an account of evil, I am not equating evil with pointlessness. Perhaps
something other than pointlessness could ground a sharper, non-gradational dis-
tinction between bad and evil. But even if it turned out that my view on pointless-
ness commits me to admit that bad and evil differ only in degree, it would be
degrees of pointlessness, not degrees of harm, which ground the distinction.
My view can accommodate both evil acts of agents who aim at the bad for its
own sake (say, de Sade), and the evil acts of drab bureaucrats (say, Arendt’s
Eichmann). In pursuing bad for its own sake, sadists, ex hypothesi, exhibit great
pointlessness—it is hard to wrap one’s mind around acting only in the pursuit of
pain. (Artists, in contrast, can be said to desire beauty for its own sake, but this
would not be thereby pointless: since beauty is good, there is always a point in
producing it—we certainly can understand someone devoting her life to producing
beauty.) In caring for bureaucratic minutiae to the extent that it numbed his
sensitive to harrowing human suffering, the actions of Arendt’s Eichmann also
exhibit great pointlessness.

5. EPILOGUE: THE POINT OF RETRIBUTION

The Jerusalem court did not need to focus on the alleged evil of Eichmann’s
actions; since he also engaged in enough garden-variety bad actions to warrant
whatever was the court’s maximum punishment. This fact reveals a certain mis-
guidedness in Arendt’s approach to Eichmann’s trial: perhaps she was too focused
on the evil (rather than the bad) in Eichmann’s actions (or worse yet: too focused
on Eichmann’s personality: his banality, clichés, superficiality, mannerisms, his
“heroic fight with the German language,” etc.). Arguably, this focus clouded her
understanding of what the trial itself was supposed to be about: the badness of what
Eichmann did.
Still, even if Arendt’s philosophical reflections were misplaced in a report of
a legal trial, they are independently valuable and deeply interesting. These reflec-
tions prompt us to ask many important questions; chief among these are: “How is
evil different from the merely bad?” and “How do we do justice in the aftermath
of evil acts?” The beginning of an answer to the first question I have attempted
above: an important difference between the bad and the evil relates to pointless-
ness. I will conclude this article by briefly addressing the second question, which
brings us back to retributivism.
As I noted earlier, a chart describing retributivism has a 45-degree line
traveling northeast, ad infinitum. While this chart neatly captures the spirit of
retributivism, very few retributivists would really accept it. Most retributivists
would refuse to punish beyond a certain level of severity; the 45-degree line will at
some point turn horizontal, and then travel horizontally ad infinitum. Punishments
above the horizontal line are simply not permitted, by retributivists as much as by
anyone else. Typically, the reasons for this are not themselves retributivist, but
political; perhaps in previous eras there was no horizontal line, but nowadays there
is. For example, one could argue that no decent state would punish anyone, not
110 Leo Zaibert

even murderers, by death, even if they ex hypothesi deserve it. Less contentiously,
it could be argued that no decent state should ever make someone suffer a har-
rowingly painful death (via torture), even if, ex hypothesi, she deserved it.64 Oth-
erwise, and insofar as there sadly appears to be no limit to human wickedness, then
there would be no limit to human punishments either.
Independently of the problem of evil, retributivists already depart from the
simplistic and dangerous view that punishment can increase in severity indefinitely.
Deserved punishments for extraordinarily evil actions may, like punishment for
some extraordinarily bad actions, fall above the horizontal line in the chart, above
the maximum level of punishment permitted. When that happens, the retributivist
will bring the punishment down to that maximum. The level of that maximum
punishment is determined independently of the problem of evil, but I want to
explain why the punishment of evil actions would tend to fall above that maximum.
Consider the extraordinarily widespread objection to the death penalty on
the grounds that by killing people, the state is doing the same thing that it criticizes.
This is a very weak objection: whatever else can be said against the death penalty
(and there is a lot that can be so said), the state’s goals are quite unlike those of the
criminals it executes. When considering evil actions, however, this sort of objection
gains in strength. For to give evildoers (as opposed to bad-doers) what they fully
deserve may entail treating them evilly. Insofar as I have linked evildoing to
pointlessness, punishing the evil in full may much more easily inherit the point-
lessness of the act being punished, than the death penalty inherits the wrongness of,
say, murder. Punishing the merely bad is, in a sense, not problematic; but punishing
the pointless, the evil, may be itself pointless too. If I am right in my earlier
suggestion that the pointlessness of evil actions renders them unjustifiable, perhaps
it also renders them unpunishable. After all, the reason we cannot justify them is
that, quite literally, they defy understanding—and for this very reason it appears
that we cannot punish them either. Even if so, this would differ from the sort of
simplistic impunity for evil which understandably worried Arendt.
Imagine a society where the maximum punishment is death, and where this
punishment is reserved for murderers. Admittedly, some murders are merely bad,
while others are evil—and all of them will be executed. None will enjoy impunity.
But the fact that all the murderers will receive the same punishment whether they
were evil or merely bad may seem problematic: the evil murderers are being
punished as if they were merely bad murderers. What are retributivists to do in
these cases? Shall they recommend that before executing the evil murderers, we
torture them, in order to somehow respond to the additional acts which pushed
some murders into the category of evil? I hope not. Calibrating punishments in this
way, torturing on retributive grounds, strikes me as both indecent and terribly
problematic.65

64. I focus here on legal punishment merely for clarity of exposition. For reasons why these
arguments work outside the legal realm too, see Leo Zaibert, Punishment and Retribution, 195 ff.
and Leo Zaibert, “Punishment an Forgiveness,” in Punishment and Ethics: New Perspectives, ed.
Jesper Ryberg and J. Angelo Corlett (London: Palgrave Macmillan, 2010), 92–110.
65. For a perplexing defense of torture see Stephen Kershnar, For Torture: A Rights-Based
Defense (Lanham, MD: Lexington Books, 2011).
 Punishment Theory Meets the Problem of Evil 111

But then it may appear as if the problem of abdication, for which I criticized
Feinberg and Arendt, resurfaces, even if in attenuated form: for I would punish the
evil and the bad in exactly the same way, despite there being a difference between
them. I think that either this is not the case, or else, when retributivists refuse to
torture a nasty but not evil murderer, she is abdicating her moral responsibility too.
If refusing to punish above a certain level in cases of non-evil actions is no
abdication, why should it be so when refusal relates to cases of evil actions?
Insofar as evil acts supervene on bad acts, and bad acts are punishable, we
should not fear impunity for evil. But at bottom, the error here consists in thinking
that punishment is our only possible response to wrongdoing—be it bad or evil.
The retributivist tradition has ways of dealing with the normative remainder
between the bad and the evil. It is not a coincidence that many retributivists have
been attracted to expressive justifications of punishment.66 The retributivist wants
justice for its own sake; often justice involves punishment, but on other occasions
it involves other things in addition to (or instead of) punishment. Evil may involve
things other than punishment, or at least other than punishment as traditionally
understood.
Even if Feinberg were right that we would “waste” our moral judgment on
the truly evil agent, we would not be thereby wasting it on everyone else, or even
on ourselves. Eichmann was not at all like a wild beast. While wild beasts can cause
harm, they simply cannot do evil acts. Even if Eichmann himself was somehow
incapable of understanding the message that justice demanded, merely to call evil
by its name, to condemn it, even if only linguistically and unilaterally, is not a waste.
Perhaps the retributivist will never be able to perfectly articulate the words that
justice demands in cases of evil actions; perhaps the words of justice in the face of
evil are much more inherently inadequate, or even ineffable, than in the face of
merely bad acts. But at least retributivists, unlike consequentialists, are bound to
say something—something which, even if necessarily incomplete and inelegant,
would affirm some of our deeply held, and indeed constitutive, values. More than
anyone else, retributivists are likely to see that sometimes there is a point in saying
some things, even if no one is listening.

66. Retributivists interested in communication include Antony Duff, Punishment, Commu-

nication, and Community (Oxford: Oxford University Press, 2003); Joel Feinberg, Doing and
Deserving: Essays in the Theory of Responsibility (Princeton, NJ: Princeton University Press, 1970);
Jean Hampton, “The Moral Education Theory of Punishment,” in Punishment, ed. Antony Duff
(Aldershot, UK: Dartmouth, 1993), 143–76.