This book is an introduction to the philosophy of punishment. It is written mainly for students of criminology, criminal justice studies and other social science disciplines, including psychology and sociology. At the same time, the aspiration is that the text will also be of interest and value to students of philosophy – especially moral philosophy – who, as I shall try to show, may find punishment to be a topic of distinctive interest. If there is a guiding idea in this book, it is the belief that the insights of philosophy and of the social sciences must be brought together to gain a rounded and critical understanding of punishment.
It will be argued that the social sciences must attend to the philosophical aspects of punishment (especially, though not only, the arguments and perceptions of moral philosophy), while philosophers need a fuller understanding of the nature of punishment – what punishment is, means and represents – in order to undertake an ethical analysis and appraisal. David Garland has pointed to the limitations of moral philosophy here:
[A]t present we lack a detailed appreciation of the nature of punishment, of its character as a social institution, and of its role in social life. … [The image on which philosophies of punishment are typically based, then,] is an impoverished one, and fails to capture the full dimensions and complexities of punishment, [so that] the solutions offered by philosophy are unlikely to match up to the problems of the institution. (Garland 1990: 9)
Many attempted justifications of punishment, moreover, make assumptions about its consequences (see Chapters 5–7). The institutions of punishment, however – the courts, prisons, probation services – and associated practices of enforcement – policing, surveillance and the technologies of risk – have many effects on wider society. And any particular act of punishment is likely to have a number of meanings and implications – especially for offenders and their families, for victims and theirs, and indeed for those with a responsibility for imposing or giving effect to the punishment. Philosophy ought to have something to say about this, although it needs to be complemented by the insights of the social sciences. Philosophy too often stops short at the point of sentence: it is assumed, for example, that everyone knows what a term of imprisonment or a community sentence involves and it is enough to inquire into the justification of the sentence. But how a sentence is put into effect, what it means to all affected, what it expresses or communicates – to offenders, to victims, to the general public – are, it will be argued, centrally relevant to an ethical appraisal.
The attempt will be made, then, to combine the insights of philosophy and of the social sciences to encourage readers in their own reflections as well as to equip them to embark on a fuller, critical study of the extensive literature in the philosophy of punishment. Nor is this only an intellectual exercise. The writing of this book has been inspired by a belief that legislators and policy makers, those who pass sentences (judges and magistrates), those who put them into effect (including prison and probation staff), those in whose name punishment takes place and who learn about and react to decisions of the court (all of us) need to think critically and in a principled way about punishment. We ought to be willing to scrutinise our own assumptions and beliefs and perhaps to think and practise differently as a result of these reflections.
What Is the Philosophy of Punishment?
Philosophers have striven to come up with a definition of philosophy for as long as they have spoken and written about it, and the best way to understand what philosophy is is to read, think about and discuss it. A lively modern collection (Edmonds and Warburton 2010) is prefaced with more than fifty attempts by the contributors to the volume to answer the question what is philosophy? For the purposes of our book, one of the most instructive definitions is offered by Michael Sandel:
Philosophy is reflecting critically on the way things are. That includes reflecting critically on social and political and economic arrangements. It always intimates the possibility that things could be other than they are. And better. (Edmonds and Warburton 2010: xxi)
The critical reflection commended by Sandel includes exposing the assumptions, often unspoken, that can shape our ideas as soon as we begin to think about a topic. It is not that these assumptions are necessarily false or misleading, but they must be open to scrutiny, reflection and challenge. Sometimes – especially in considering something like punishment, which tends to attract strong opinions (for reasons to be explored throughout and especially in Chapter 2) – views may be held tenaciously or even stubbornly, and it is wise to be aware that thinking differently and being challenged to consider changing our views makes demands on us not only intellectually but also emotionally. Especially when dreadful crimes take place, if we are in any doubt about the proper response, politicians, the mass media and other people are keen to tell us how we ought to think, and it can become very difficult to express a different opinion or even to think otherwise without being seen as or feeling in some sense disloyal, as letting down the victim or as somehow condoning the crime.
Definition of Punishment
Philosophers of punishment have usually focused on two matters. One of these is the definition of punishment. Definition is a preoccupation of philosophers and there is extensive debate and disagreement about how punishment is to be defined. One difficulty here is a word may be used so widely and erratically that any attempt to construct a descriptive definition (the word is used like this) is unlikely to succeed. This is certainly true of the word ‘punishment’, which can be used to refer to almost any way of responding to wrongdoing in a way that demonstrates disapproval or blaming; or, on the other hand, to distinguish some ways of responding from others – inflicting pain or depriving people of liberty, as opposed to responses that attempt to improve people through rehabilitation (see Chapter 6) or to ‘right the wrong’ by apology or making amends (Chapter 8). Partly for these reasons, some writers prefer a stipulative definition (let’s use the word in this way). But this too has its drawbacks, because the chosen definition can exclude consideration of some important aspects of the institutions and practices that we need to understand and appraise.
Most definitions state that
- Punishment involves imposing pain, hardship, deprivation or at least something unwanted. This characteristic is often referred to as ‘hard treatment’. It could be said that unless a response to wrongdoing has that character, it would not be punishment but something else, like ignoring, forgiving or rewarding.
- It must be for an offence. The relationship between offence and punishment implied by the innocent little word for has led to an enormous amount of debate. Yet an offence must be not only the occasion but also the reason for punishment.
- It must be imposed on the offender. It is true that it is possible to speak of the punishment of an innocent person, but if someone was not believed to be guilty or even a pretence of their guilt made, it would not be punishment but something else, like persecution or victimisation.
- It must be imposed by an authority. Most discussions of punishment confine themselves to punishment by the state for crimes (which is also the main focus of this book). Yet punishment can also take place in families, in schools and institutions like professional bodies or societies who may punish their members for some offence against the organisation’s rules. Unless the punishment is imposed by the relevant authority, however, it may be thought to be more accurate to speak of getting your own back or retaliation.
- Punishment is always an act of censure or blaming (von Hirsch 1993). It expresses disapproval and declares the individual responsible for an offence (Feinberg 1965). More than this, it is intended to communicate that judgement to the offender and to others.
In the course of this book, all of these components of a definition will be explored further. Some writers would include other elements besides (for thorough discussions, see Boonin 2008; Brooks 2012). Bagaric alerts us to the possibility that some definitions of punishment already tilt the argument in one direction or another and for this reason he proposes a wide and general definition:
punishment is a hardship or deprivation … for a wrong actually or perceived to have been committed. (Bagaric 2001: 38)
Yet even this straightforward definition may raise some immediate questions. What counts as ‘a hardship or deprivation’? Does this depend on the intention of the punisher, or the experience of the person punished? Should account be taken of the perceptions of the victim or of other people? Is a probation order (for instance), which is an imposition certainly but which often involves a great deal of personal support to the offender, to be understood as ‘a hardship or deprivation’? What about a meeting or conference where an offender makes an apology to the victim? Are conditional or suspended sentences (where nothing directly happens to the offender on condition of her future good behaviour) punishments? Again, are all punishments for ‘a wrong’? Bagaric’s reference to ‘actually or perceived to have been committed’ anticipates this point. Even so, questions remain: What is to be said about a principled act of disobedience against an unjust law? Are we to say that this is not after all a punishment? At what point does punishment turn into persecution or oppression?
It is important to know what is under discussion, and this seems to call for a sound definition. At the same time, since Chapters 2 and 3 will explore what punishment means to us and why it matters so much, it is no less important to ensure that a definition does not exclude from consideration practices and experiences that need to be taken into account as part of a rounded understanding of punishment. There are accordingly times in this book when the term ‘punishment’ is used in a wider sense than is usual in the literature. Distinctions must be made between criminal punishment by the state and other kinds of punishment, but not all societies make these distinctions so sharply, and anthropology shows how much can be learned about the nature and sentiments of punishment by looking at the institutions and practices of other times and places (Roberts 1979). It may turn out to limit our understanding if we try to make too sharp a differentiation between criminal punishment and other social practices that respond to wrongdoing, rule-breaking and conflicts. Blaming and sometimes hard treatment take place in any number of human exchanges, and it may be unwise to start an inquiry by overlooking these common and familiar practices.
Justification of Punishment
The second main concern of philosophers of punishment has been its moral justification. Why does punishment need a justification? Nils Christie writes that ‘imposing punishment within the institution of law means the inflicting of pain, intended as pain’ (Christie 1981: i). This is stark, challenging and immediately makes punishment deeply morally problematic. Avoiding harming others is one of the most universal and fundamental foundations of moral reasoning (Haidt 2012). Apart from torture (which is almost everywhere held to be wrong), nothing else involves inflicting pain intended as pain. So far from feeling troubled about this, however, most people accept that it must be justified and many indeed celebrate punishment, take sa...