Topics in Moral and Political Philosophy Punishment

Authority – Punishment Political authority: The state has the right to impose obligations on its subjects and to use coercion in order to enforce these obligations. Two claims : the state has the right to rule; the state has the right to punish those who disobey.

What is punishment? Legal punishment “involves the imposition of something that is intended to be burdensome or painful, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so” (Antony Duff).

Consequentialism Legal punishment is justified because punishing those who break the law produces positive consequences: Deterrence Incapacitation Reform

Objections to Consequentialism 1) Consequentialism cannot account for two requirements: punishment is justified only when someone is culpably responsible for a crime; punishment must be proportional to the crime 2) Consequentialist punishment does not treat the guilty as a rational and responsible moral agent We should not treat persons “merely as means…but in every case as ends also” (Immanuel Kant, The Metaphysic of Morals, 1797)

Side-Constrained Consequentialism The “general justifying aim” of punishment is given by the fact that punishment produces good consequences. But there are constraints to the pursuit of this aim: only the guilty may be punished the severity of punishment must be proportionate to the seriousness of the crime.

Consequentialism, rational agency and respect The wrongdoer is treated “like a dog instead of with the freedom and respect due to him as a man” (G. W. F. Hegel, The Philosophy of Right, 1821).

Forfeiture view “The offender, by violating the life or liberty or property of another, has lost his own right to have his life, liberty, or property respected, so that the state has no prima facie duty to spare him, as it has a prima facie duty to spare the innocent. It is morally at liberty to injure him as he has injured others, or to inflict any lesser injury on him, or to spare him, exactly as consideration both of the good of the community and of his own good requires. If, on the other hand, a man has respected the rights of others, there is a strong and distinctive objection to the state’s inflicting any penalty on him with a view to the good of the community or even to his own good.” (W.D. Ross, “The Right and the Good”)

Objections to the Forfeiture View 1)It’s not clear which rights are forfeited exactly. Nor is it clear for how long they are suspended. 2)Once the wrongdoers’ right not to be punished has been forfeited, anyone is at liberty to kill them or to punish them for any reason (or even for no reason); 3)Vigilantism 4)It is permissible to rape the rapists and torture the torturers

Retributivism “Retributivism … is the view that punishment is justified by the desert of the offender. The good that is achieved by punishing, on this view, has nothing to do with future states of affairs, such as the prevention of crimes or the maintenance of social cohesion. Rather the good that punishment achieves is that someone who deserves gets it” (Michael Moore, Placing Blame. A Theory of Criminal Law, p. 87).

Fair-play Everyone who participates in a reasonably just, mutually beneficial scheme of social cooperation has an obligation to bear a fair share of the burdens of the scheme provided that: the benefits produced by the scheme can be obtained if everyone, or nearly everyone cooperates; cooperation requires certain sacrifice from each member of the scheme (at least a restriction of one’s liberty); the benefits produced by the scheme can be received, at least in some cases, by those who do not do their part in maintaining the scheme

Objections to Fair-play Criminal punishment is deserved in the sense that it is the only way to “restore the proper balance” between benefits and obedience. But The wrongfulness of rape or murder cannot be reduced to taking an unfair advantage over those who obey the law. In what sense is the rapist taking an unfair advantage over us if it is not a burden for us to refrain from rape? NB: Mala prohibita vs mala in se

Communicative theories Censuring the conduct declared wrong by the state is owed: to the victims of the crime; to society in general; to the offender.

Punishment and time The communicative theory has both a forward-looking and a backward-looking dimension: backward-looking dimension: censure and moral condemnation are appropriate responses to a past act. forward-looking dimension: in censuring someone we hope to convince her that her conduct was wrong, so that she will refrain from committing the crime again in future.