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Punishment and Moral Seriousness

Published online by Cambridge University Press:  16 February 2016

John Kleinig
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There is no single “problem of punishment”. The activity of punishing is problematic at many levels. There are problems relating to the authority to punish, the severity of punishment, the method of punishment, and of course the moral basis for punishment. Given this, we should be surprised were we to find that all these problems could be comprehended by a single, simple rationale. Nevertheless, there is one, fundamental, underlying moral challenge posed by all punishment, and it is especially (though not exclusively) to this that the classical justifications of punishment have been primarily directed. “Retributivist” and “utilitarian” justifications, however we understand them, are, above all, responses to what I see as this central problem of punishment.

Type
Theories of Punishment
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 401 - 421
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 I have discussed this and alternative characterizations in Punishment and Desert (The Hague, Martinus Nijhoff, 1973) 22ff.Google Scholar I need however, to take into account a fascinating argument by Jacob Adler, who claims that this way of characterizing punishment illegitimately focuses on a legal paradigm of punishment. Taking his cues from Plato and the religious tradition of penance, Adler argues that a more appropriate paradigm — that of the conscientious punishee — would have the latter willingly accepting/seeking his/her punishment. So viewed, punishment is no imposition (Adler, Jacob, “The Urgings of Conscience: A Theory of Punishment”, unpublished Ph.D. dissertation (Harvard University, 1985) chap. 1Google Scholar). My brief response is to claim that whether or not the punishee willingly accepts punishment, he/she is given no option in that regard, and for that reason the punishment still constitutes an imposition. Behind this response, however, there lurks the much larger debate over different paradigms of liberty — in particular, between the view that liberty consists in the satisfaction of desires and the view that it consists in the nonrestriction of options. Adler appears to be working with some variant of the former, and I am appealing to some variant of the later.

2 See Punishment and Desert, supra n. 1, at 65, 66; also Schoeman, Ferdinand, “On Incapacitating the Dangerous” (1979) 16 Am. Philosophical Q. 27–35Google ScholarPubMed.

3 See particularly Feinberg, Joel, “The Expressive Function of Punishment”, reprinted in Doing and Deserving (Princeton U. P., 1970) 95–118Google Scholar.

4 I will return to this later, in Section VI.

5 This is, I realize, a controversial way of putting it. For we think of character dispositionally, and the conduct for which people are punished may sometimes be “out of character”. However, I think it is defensible if certain caveats are observed:

(a) I do not want to be taken to be arguing that we punish people for their character and not their conduct — though see Bayles, Michael D., “Character, Purpose, and Criminal Responsibility” (1982) 1 Law and Philosophy 5–20CrossRefGoogle Scholar; Pincoffs, Edmund L., “Legal Responsibility and Moral Character” (1973) 19 Wayne L. R. 905–23Google Scholar. My point is rather that when we punish them for their conduct, the conduct in question is taken to be expressive of some character defect — whether weakness of will, moral obtuseness, or some particular vice such as greed. Even punishable conduct that is “out of character” — a selfish act by a normally unselfish person — will be some evidence of akrasia.

(b) Nor am I arguing that the moral judgment involved represents a whole life assessment — see Parent, W. A., “The Whole Life View of Criminal Desert” (1976) 86 Ethics 350–54CrossRefGoogle Scholar. Punishment is generally directed to particular conduct, even conduct that is “out of character”.

Maybe I do not need to express my point in terms of character — all that is really necessary is that the punishable conduct reflect badly on the person. However, the explicit reference to character serves to bring out more clearly the link I wish to establish between punishment and moral seriousness.

6 I leave aside the problem of punishment of animals — see Evans, Edward P., The Criminal Prosecution and Capital Punishment of Animals (London, Heinemann, 1906)Google Scholar; Hyde, Walker W., “The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times” (1915) 64 U. Pa. L. R. 696–730Google Scholar — and also whether divine punishment, etc. coheres with this claim. Most traditional theologies characterize God in personal terms.

7 Writers who characterize non-formalized punishment as revenge seem to me to misunderstand revenge. What motivates revenge (getting back at some hurt) is quite different from what occasions punishment. See Punishment and Desert, supran. 1, at 38-40; also Nozick, Robert, Philosophical Explanations (Oxford, Blackwell, 1981) 366–67Google Scholar.

8 Although I think the state-of-nature theorists generally identified retaliation with punishment (perhaps via the idea of lex talionis), it was not a felicitous identification. See Punishment and Desert, supra n. 1, at 26, 39; also Kidder, Joel, “Requital and Criminal Justice” (1975) 15 Int'l Philosophical Q. 265Google Scholar; Woolsey, T. S., “Retaliation and Punishment” (1915) Am. Society of Int'l L. Proceedings 62–9Google Scholar.

9 As Anthony Quinton once suggested: “On Punishment” reprinted in Acton, H. B., ed., The Philosophy of Punishment (London, Macmillan, 1969) 55–64Google Scholar.

10 It has become customary (following W. D. Ross, I believe) to speak of such reasons as “prima facie”. I am not comfortable with this characterization. There is nothing prima facie about the reasons as reasons. Wrongdoing provides a (real, and not merely apparent) reason (and a good reason to boot) for punishing even when punishment would not be justified. That it may be overridden does not mean that it no longer exists or that it has no weight.

11 I have attempted to provide additional elaboration of this claim in “Moral Education and the Nature of Morality” (Oct. 1981) J. of Christian Education, Papers 72, esp. 32–8Google Scholar.

12 Some of that complexity is addressed in Morris, Herbert, “Punishment for Thoughts”, reprinted in On Guilt and Innocence (Berkeley, U. of Calif. P., 1976) 1–29Google Scholar.

13 In saying that they “originate” in the moral domain, I do not want to deny that they frequently undergo some transformation/modification when they enter the legal sphere. Some of those changes are mandated by the practicalities of the legal process.

14 I do not deny a certain ambiguity and controversiality in this claim. See Cooper, Neil, “Morality and Importance”, reprinted in Wallace, G. & Walker, A. D. M., eds., The Definition of Morality (London, Methuen, 1970) 91–97Google Scholar; Foot, Philippa, “Are Moral Considerations Overriding?” in Virtues and Vices (Berkeley, U. of Calif. P., 1978) 181–88Google Scholar.

15 I do not want to argue that all breaches of morality are appropriate items for legal punishment. There are several levels of human interconnectedness, and violations of some of our most intimate relationships — of love, friendship and affection — will often not be meet for legal punishment; they must also breach certain moral minima — such as are embodied in moral rights.

16 For a much more detailed development of these connections, see Benn, S. I., A Theory of Freedom (Cambridge U. P., 1988)CrossRefGoogle Scholar.

17 I am not trying to urge a strenuous moral rationality, divorced from habit. Moral reflection is as much a matter of openness to morally relevant considerations as of actual deliberation.

18 See von Hirsch, Andrew, Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick, N.J., Rutgers U. P., 1985) chap. 5Google Scholar.

19 Stevenson, C. L., Ethics and Language (New Haven, Yale U. P., 1945) 307Google Scholar.

20 The phrase is Joel Feinberg's from “The Expressive Function of Punishment”, supra n. 3, at 95ff.

21 See, for example, Herbert Morris, “Persons and Punishment”, reprinted in On Guilt and Innocence, supra n. 12, at 31-88; Murphy, Jeffrie G., Retribution, Justice and Therapy (Dordrecht, Reidel, 1979)CrossRefGoogle Scholar; Finnis, John, Natural Law and Natural Rights (Oxford, Clarendon, 1980) chap. 10Google Scholar.

22 Morris, ibid., at 33. Some writers have criticized Morris for characterizing the self-restraint as a restraint on “inclinations”. The law-abiding person may not be inclined to violate the “core rules”. But the point does not have to be expressed in that way. Whether or not the law-abiding person wants to violate the core rules, those rules do constitute a limitation on his/her options. For a defence of Morris against this criticism, see Sadurski, Wojciech, Giving Desert its Due: Social Justice and Legal Theory (Dordrecht, Reidel, 1985) chap. 8CrossRefGoogle Scholar.

23 Morris, supra n. 21, at 33. I don't think that by this Morris means the idiosyncratic values of people, but certain core or shared values, common to all — what we might call their welfare interests.

24 The defender of this view suffers from the moral schizophrenia of which Stacker, Michael speaks in “The Schizophrenia of Modern Ethical Theories” (1976) 73J. of Philosophy 453–66Google Scholar.

25 Hegel, G. W. F., Philosophy of Right (trans. Knox, T. M., Oxford, Clarendon, 1942) addition to sec. 97, p. 246Google Scholar.

26 Ibid., at sec. 99, p. 69.

27 Ibid., at secs. 98, 101, pp. 69, 71. An interesting defence of this interpretation can be found in Cooper, David E., “Hegel's Theory of Punishment”, in Pelczynski, Z. A., ed., Hegel's Political Philosophy (Cambridge U. P., 1971) 151–67Google Scholar.

28 See the criticism of Ten, C. L. in Crime, Guilt, and Punishment (Oxford, Clarendon, 1987) 40–1Google Scholar.

29 Nor is this arrogation always uncomplicated — as in “dirty hands” situations.

30 Plato, , Gorgias, 480bGoogle Scholar.

31 For a recent discussion of “communicative” theories, see Primoratz, Igor, “Punishment as Language” (1989) 64 Philosophy 187–205CrossRefGoogle Scholar.

32 Some of the points are well made in Jeffrie Murphy's “Marxism and Retribution”, in Retribution, Justice, and Therapy, supra n. 21, though for significant qualifications see Reiman, Jeffrey, “Justice, Civilization and the Death Penalty: Answering van den Haag” (1985) 14 Philosophy & Public Affairs 115–48Google Scholar, and C. L. Ten, Crime, Guilt, and Punishment, supra n. 28, at 63-4.

33 Exodus 2:14.

34 For such views, see Mabbott, J. D., “Punishment” (1939) 48 Mind 154Google Scholar; Benn, S. I. & Peters, R. S., Social Principles and the Democratic State (London, Allen & Unwin, 1959) 177Google Scholar.

35 Benn & Peters, ibid., at 175.