Philosophical Perspectives on Punishment, Second Edition

Gertrude Ezorsky

• Publisher: SUNY Press
• Year: 2015
• Print ISBN: 9781438458564, 9781438458557
• eBook ISBN: 9781438458571
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Bringing together classic and contemporary texts, this collection considers general philosophical concepts about and justifications for punishment, along with particular issues such as the death penalty and possible alternatives to punishment. New to the second edition are sections on prison labor, solitary confinement, and issues relating to the punishment of people of color, women, and the poor. Drawing from philosophy, law, literature, and activism, Gertrude Ezorsky provides a comprehensive and up-to-date account of the philosophical issues underlying and growing out of punishment.

Chapter One

Concepts of Punishment

Thomas Hobbes	Of Punishments and Rewards
A.M. Quinton	On Punishment
Kurt Baier	Is Punishment Retributive?
Joel Feinberg	The Expressive Function of Punishment

Thomas Hobbes

Of Punishments and Rewards*

A Punishment, is an Evill inflicted by publique Authority, on him that hath done, or omitted that which is Judged by the same Authority to be a Transgression of the Law; to the end that the will of men may thereby the better be disposed to obedience.

Before I inferre any thing from this definition, there is a question to be answered, of much importance; which is, by what door the Right, or Authority of Punishing in any case, came in. For by that which has been said before, no man is supposed bound by Covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a Common-wealth, every man giveth away the right of defending another; but not of defending himselfe. Also he obligeth himselfe, to assist him that hath the Soveraignty, in the Punishing of another; but of himselfe not. But to covenant to assist the Soveraign, in doing hurt to another, unlesse he that so covenanteth have a right to doe it himselfe, is not to give him a Right to Punish. It is manifest therefore that the Right which the Common-wealth (that is, he, or they that represent it) hath to Punish, is not grounded on any concession, or gift of the Subjects. But I have also shewed formerly, that before the Institution of Common-wealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of Punishing, which is exercised in every Common-wealth. For the Subjects did not give the Soveraign that right; but onely in laying down theirs, strengthned him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him onely; and (excepting the limits set him by naturall Law) as entire, as in the condition of meer Nature, and of warre of every one against his neighbour.

From the definition of Punishment, I inferre, First, that neither private revenges, nor injuries of private men, can properly be stiled Punishment; because they proceed not from publique Authority.

Secondly, that to be neglected, and unpreferred by the publique favour, is not a Punishment; because no new evill is thereby on any man Inflicted; he is onely left in the estate he was in before.

Thirdly, that the evill inflicted by publique Authority, without precedent publique condemnation, is not to be stiled by the name of Punishment; but of an hostile act; because the fact for which a man is Punished, ought first to be Judged by publique Authority, to be a transgression of the Law.

Fourthly, that the evill inflicted by usurped power, and Judges without Authority from the Soveraign, is not Punishment; but an act of hostility; because the acts of power usurped, have not for Author, the person condemned; and therefore are not acts of publique Authority.

Fifthly, that all evill which is inflicted without intention, or possibility of disposing the Delinquent, or (by his example) other men, to obey the Lawes, is not Punishment; but an act of hostility; because without such an end, no hurt done is contained under that name.

Sixthly, whereas to certain actions, there be annexed by Nature, divers hurtfull consequences; as when a man in assaulting another, is himselfe slain, or wounded; or when he falleth into sicknesse by the doing of some unlawfull act; such hurt, though in respect of God, who is the author of Nature, it may be said to be inflicted, and therefore a Punishment divine; yet it is not contaned in the name of Punishment in respect of men, because it is not inflicted by the Authority of man.

Seventhly, If the harm inflicted be lesse than the benefit, or contentment that naturally followeth the crime committed, that harm is not within the definition; and is rather the Price, or Redemption, than the Punishment of a Crime: Because it is of the nature of Punishment, to have for end, the disposing of men to obey the Law; which end (if it be lesse that the benefit of the transgression) it attaineth not, but worketh a contrary effect.

Eighthly, If a Punishment be determined and prescribed in the Law it selfe, and after the crime committed, there be a greater Punishment inflicted, the excesse is not Punishment, but an act of hostility. For seeing the aym of Punishment is not a revenge, but terrour; and the terrour of a great Punishment unknown, is taken away by the declaration of a lesse, the unexpected addition is no part of the Punishment. But where there is no Punishment at all determined by the Law, there whatsoever is inflicted, hath the nature of Punishment. For he that goes about the violation of a Law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary Punishment.

Ninthly, Harme inflicted for a Fact done before there was a Law that forbad it, is not Punishment, but an act of Hostility: For before the Law, there is no transgression of the Law: But Punishment supposeth a fact judged, to have been a transgression of the Law; Therefore Harme inflicted before the Law made, is not Punishment, but an act of Hostility.

Tenthly, Hurt inflicted on the Representative of the Common-wealth, is not Punishment, but an act of Hostility: Because it is of the nature of Punishment, to be inflicted by publique Authority, which is the Authority only of the Representative it self.

Lastly, Harme inflicted upon one that is a declared enemy, fals not under the name of Punishment: Because seeing they were either never subject to the Law, and therefore cannot transgresse it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgresse it, all the Harmes that can be done them, must be taken as acts of Hostility. But in declared Hostility, all infliction of evill is lawfull. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberatly deny the authority of the Representative of the Common-wealth, (whatsoever penalty hath been formerly ordained for Treason,) he may lawfully be made to suffer whatsoever the Representative will: For in denying subjection, he denyes such Punishment as by the Law hath been ordained; and therefore suffers as an enemy of the Common-wealth; that is, according to the will of the Representative. For the Punishments set down in the Law, are to Subjects, not to Enemies; such as are they, that having been by their own act Subjects, deliberately revolting, deny the Soveraign Power.

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*Thomas Hobbes, Leviathan (New York: E. P. Dutton & Co., 1950), 266–69.

A. M. Quinton

On Punishment*

I. Introductory

There is a prevailing antinomy about the philosophical justification of punishment. The two great theories—retributive and utilitarian—seem, and at least are understood by their defenders, to stand in open and flagrant contradiction. Both sides have arguments at their disposal to demonstrate the atrocious consequences of the rival theory. Retributivists, who seem to hold that there are circumstances in which the infliction of suffering is a good thing in itself, are charged by their opponents with vindictive barbarousness. Utilitarians, who seem to hold that punishment is always and only justified by the good consequences it produces, are accused of vicious opportunism. Where the former insists on suffering for suffering’s sake, the latter permits the punishment of the innocent. Yet, if the hope of justifying punishment is not to be abandoned altogether, one of these apparently unsavory alternatives must be embraced. For they exhaust the possibilities. Either punishment must be self-justifying, as the retributivists claim, or it must depend for its justification on something other than itself, the general formula of “utilitarianism” in the wide sense appropriate here.

In this paper I shall argue that the antinomy can be resolved, since retributivism, properly understood, is not a moral but a logical doctrine, and that it does not provide a moral justification of the infliction of punishment but an elucidation of the use of the word. Utilitarianism, on the other hand, embraces a number of possible moral attitudes toward punishment, none of which necessarily involves the objectionable consequences commonly adduced by retributivists, provided that the word “punishment” is understood in the way that the essential retributivist thesis lays down. The antinomy arises from a confusion of modalities, of logical and moral necessity and possibility, of “must” and “can” with “ought” and “may.” In brief, the two theories answer different questions: retributivism the question “when (logically) can we punish?,” utilitarianism the question “when (morally) may we or ought we to punish?” I shall also describe circumstances in which there is an answer to the question “when (logically) must we punish?” Finally, I shall attempt to account for this difference in terms of a distinction between the establishment of rules whose infringement involves punishment from the application of these rules to particular cases.

II. The Retributive Theory

The essential contention of retributivism is that punishment is only justified by guilt. There is a certain compellingness about the repudiation of utilitarianism that this involves. We feel that whatever other considerations may be taken into account, the primary and indispensable matter is to establish the guilt of the person to be punished. I shall try to show that the peculiar outrageousness of the rejection of this principle is a consequence, not of the brutality that such rejection might seem to permit, but of the fact that it involves a kind of lying. At any rate the first principle of retributivism is that it is necessary that a man be guilty if he is to be punished.

But this doctrine is normally held in conjunction with some or all of three others which are logically, if not altogether psychologically, independent of it. These are that the function of punishment is the negation or annulment of evil or wrongdoing, that the punishment must fit the crime (the lex talionis) and that offenders have a right to punishment, as moral agents they ought to be treated as ends not means.

The doctrine of “annulment,” however carefully wrapped up in obscure phraseology, is clearly utilitarian in principle. For it holds that the function of punishment is to bring about a state of affairs in which it is as if the wrongful act had never happened. This is to justify punishment by its effects, by the desirable future consequences which it brings about. It certainly goes beyond the demand that only the guilty he punished. For, unlike this demand, it seeks to prescribe exactly what the punishment should be. Holding that whenever wrong has been done it must be annulled, it makes guilt—the state of one who has done wrong—the sufficient as well as the necessary condition of punishment. While the original thesis is essentially negative, ruling out the punishment of the innocent, the annulment doctrine is positive, insisting on the punishment and determining the degree of punishment of the guilty. But the doctrine is only applicable to a restricted class of cases, the order of nature is inhospitable to attempts to put the clock back. Theft and fraud can be compensated, but not murder, wounding, alienation of affection, or the destruction of property or reputation.

Realizing that things cannot always be made what they were, retributivists have extended the notion of annulment to cover the infliction on the offender of an injury equal to that which he has caused. This is sometimes argued for by reference to Moore’s theory of organic wholes, the view that sometimes two blacks make a white. That this, the lex talionis, revered by Kant, does not follow from the original thesis is proved by the fact that we can always refrain from punishing the innocent hut that we cannot always find a punishment to fit the crime. Some indeed would argue that we can never fit punishment to wrongdoing, for how are either, especially wrongdoing, to be measured? (Though, as Ross has pointed out, we can make ordinal judgments of more or less about both punishment and wrongdoing.)

Both of these views depend on a mysterious extension of the original thesis to mean that punishment and wrongdoing must necessarily be somehow equal and opposite. But this is to go even further than to regard guilt and punishment as necessitating one another. For this maintains that only the guilty are to be punished and that the guilty are always to be punished. The equal and opposite view maintains further that they are to be punished to just the extent that they have done wrong.

Finally retributivism has been associated with the view that if we are to treat offenders as moral agents, as ends and not as means, we must recognize their right to punishment. It is an odd sort of right whose holders would strenuously resist its recognition. Strictly interpreted, this view would entail that the sole relevant consideration in determining whether and how a man should be punished is his own moral regeneration. This is utilitarian and it is also immoral, since it neglects the rights of an offender’s victims to compensation and of society in general to protection. A less extreme interpretation would be that we should never treat offenders merely as means in inflicting punishment but should take into account their right to treatment as moral agents. This is reasonable enough; most people would prefer a penal system which did not ignore the reformation of offenders. But it is not the most obvious correlate of the possible view that if a man is guilty he ought to be punished. We should more naturally allot the correlative right to have him punished to his victims or society in general and not to him himself.

III. The Retributivist Thesis

So far I have attempted to extricate the essentials of retributivism by excluding some traditional but logically irrelevant associates. A more direct approach consists in seeing what is the essential principle which retributivists hold utilitarians to deny. Their crucial charge is that utilitarians permit the punishment of the innocent. So their fundamental thesis must be that only the guilty are to be punished, that guilt is a necessary condition of punishment. This hardly lies open to the utilitarian countercharge of pointless and vindictive barbarity, which could only find a foothold in the doctrine of annulment and in the lex talionis. (For that matter, it is by no means obvious that the charge can be sustained even against them, except in so far as the problems of estimating the measure of guilt lead to the adoption of a purely formal and external criterion which would not distinguish between the doing of deliberate and accidental injuries.)

Essentially, then, retributivism is the view that only the guilty are to be punished. Excluding the punishment of the innocent, it permits the other three possibilities: the punishment of the guilty, the nonpunishment of the guilty, and the nonpunishment of the innocent. To add that guilt is also the sufficient condition of punishment, and thus to exclude the nonpunishment of the guilt...

Table of contents

• Cover
• Title
• Copyright
• Contents
• The Ethics of Punishment
• Chapter One: Concepts of Punishment
• Chapter Two: The Justification of Punishment
• Chapter Three: The Death Penalty
• Chapter Four: Groups Punished
• Chapter Five: Prison Labor
• Chapter Six: Solitary Confinement
• Chapter Seven: Possible Alternatives to Punishment
• Bibliography
• Back Cover