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The Justification of Punishment

The document discusses different philosophical perspectives on criminal punishment: (1) Retributivism holds that punishment is justified because offenders deserve it for committing a crime. Kant's version argues society has a duty to punish proportional to the offense. (2) Utilitarian views like Brandt's rule-utilitarianism define right acts as those promoting good consequences like deterrence, rehabilitation, and social utility over retribution. (3) Another view argues punishment must benefit offenders through moral education, not just inflict pain, as "evil deserves correction, not pain for pain." Disagreements remain around excuses, mitigation, and consequences of different justifications.

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Tony Baker
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313 views21 pages

The Justification of Punishment

The document discusses different philosophical perspectives on criminal punishment: (1) Retributivism holds that punishment is justified because offenders deserve it for committing a crime. Kant's version argues society has a duty to punish proportional to the offense. (2) Utilitarian views like Brandt's rule-utilitarianism define right acts as those promoting good consequences like deterrence, rehabilitation, and social utility over retribution. (3) Another view argues punishment must benefit offenders through moral education, not just inflict pain, as "evil deserves correction, not pain for pain." Disagreements remain around excuses, mitigation, and consequences of different justifications.

Uploaded by

Tony Baker
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Philosophy of Law: Nov.

20, 2012

(1) What justifies criminal punishment in general?


(2) What principle(s) ought to guide decisions about appropriate kinds and amounts of punishment? (3) When is punishment unjustified?

(1) Punishment involves the infliction of pain, harm, loss, or deprivation. Intuitively, these things are bad, undesirable, or both, and seem to demand justification. (2) In some contexts, claiming to administer criminal punishment seems futile or wrong.
[An unusual example : the case of the dog Provetie p. 261]
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The ancient principle of lex talionis (an eye for an eye, a tooth for a tooth, a life for a life)
It can be traced back to the ancient Babylonian code of Hammurabi (about 1772 B.C.)
It seems to be implicit in several fundamental texts in the Judeo-Christian, for instance Genesis 9:6

Kants version of the Retributive Theory:


(1) Society has a right and a duty to inflict pain on a person who commits a crime. (99, 100, 102) (2) The person who commits a crime deserves to be punished for having willed a punishable action. (p. 105). (3) Criminals should punished because and only because they deserve to be punished.

Once society establishes sufficient reason to punish, the punishment must be administered. Even if a society were about to disband, the justification of punishment would require it to execute the last murderer remaining in the prison. (p. 102)

Builds on lex talionis as a way of determining what kind and degree of punishment is appropriate. (This is the retributivists answer to Question Two.)
Kant sometimes calls it the principle of equality. (But the details are more complex than this suggests.)

Kant rejects any defense of punishment that appeals to possible beneficial consequences for society (including any appeals to utility). He rejects deterrence He rejects the idea of rehabilitation or behavioral therapy All such projects wrongly manipulate the criminal merely as a means to the purposes of others. (p. 100)

Count Beccaria On Crimes and Punishments


(1764)
Rejected many forms of punishment associated with retributivist views ( including capital punishment) as cruel and backward-looking hindrances to human progress Kant explicitly challenges Beccarias attack on capital punishment (104-105) tells us that it cannot be justified to determine the nature or merits of punishment by reference to social consequences

R. B.Brandt The retributivist claims to punish moral guilt; but then shouldnt attempted crimes be punished as severely as successful crimes? (p. 267)
Cant there be (admittedly exceptional) circumstances in which we must be ready to punish independent of moral blameworthiness?

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Consequentialist Views
Start with a notion of good consequences, then define what is right in terms of what promotes good consequences.

Deontological Views
Maintain that what it is right to do (what moral duty demands) must be defined prior to and independent of what might promote good consequences.

e.g. Utilitarian moral theories (act- or rule-)

e.g.Kants theory and some

Divine Command theories

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These views start with a notion of good consequences, and then define what is right in terms of what promotes those good consequences.
e.g. Utilitarianism : -Rule-utilitarianism (Brandt, p. 263) (Observe those general rules that maximize net expectable utility.)

-Act-utilitarianism: Perform those actions that maximize net expectable utility)


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These views maintain that what it is right to do (what moral duty requires) must be defined prior to and independent of what (might) promote good consequences.
[deon Gk. for obligation or duty]

What makes an action right is conformity with the standard of duty.

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E.g. Kants moral theory Morality is addressed to human beings in the form of unconditioned and exceptionless commands.

We can articulate those commands by reference to the fundamental principle of morality called The Categorical Imperative. [3 formulations - .]

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(1) Universal Law Formula

Act only on that maxim through which you can at the same time will that it should become a universal law.
(2) Respect for Persons Formula Act so that you treat humanity, whether in your own person or in that of any other, always as an end and never as a means only

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E.g. : R. B. Brandts Rule-Utilitarianism rejects the backward-looking character of Retributivism:

(1) Cites the value of deterrence (both general and special)


(2) Looks to the possibility of education and rehabilitation of the criminal

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Penalties should be such that the (probable) disutility of making them more severe just balances the probable gain in utility for society.
(p. 264) Here he draws on Benthams views in Principles of

Morals and Legislation


(1789)

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1. Does it matter that there is disagreement about the deterrent value of punishment? 2. Can the utilitarian recognize the importance of defenses that completely excuse someone from criminal liability?
e.g. compulsion; ignorance of fact; some versions of the insanity defense]

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3. Can the utilitarian recognize the validity of mitigating excuses?


4. Does utilitarianism (wrongly) treat punish as a kind of quarantine (i.e. as essentially a form of social exclusion that exacts personal sacrifice for the good of society)? 5. Do utilitarian justifications require us to do such things as punish the innocent, or deny due process to accused persons?
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This theory claims to incorporate features of deterrence, retributivist, and rehabilitation views. Punishment must be a form of moral education, teaching both the wrongdoer and the public at large the moral reasons for choosing not to perform an offense. (p.276)

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It supposes that the only thing that human beings can deserve in life is some good.
So that punishment (as the infliction of pain and loss) is justified when and only when it benefits the offender.
Wrong occasions punishment not because pain deserves pain, but because evil deserves correction. (p. 279).

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