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Published online by Cambridge University Press: 16 February 2016
(1) During my lifetime most of the discussion of punishment in British philosophical journals has started from an article first published in 1939. Thirty years later this was reprinted, along with a selection of eleven of the most substantial subsequent contributions, to form a volume which has since served to introduce further student generations to The Philosophy of Punishment. In that seminal paper the late John Mabbott — whom it was later my good fortune to have as one of my tutors — proposed “to defend a retributive theory of punishment, and to reject absolutely all utilitarian considerations from its justification”.
His initial claim perhaps sounded bolder, or rasher, than it was. For Mabbott in his second paragraph explained: “The question I am asking is this. Under what circumstances is the punishment of some particular person justified, and why?” After giving and defending his retributive answer to this question Mabbott turned to the “distinction between abolishing injustice in punishment and abolishing punishment altogether”. While still insisting that “punishment is a corollary of law breaking …” he went on to allow that “considerations of utility come in on two quite different issues. Should there be laws, and what laws should there be? … The choice which is the essential prius of punishment is the choice that there should be laws”.
1 Mabbott, J. D., “Punishment” (1939) 48 Mind 154Google Scholar.
2 Acton, H. B., ed., The Philosophy of Punishment (London, Macmillan, 1969)Google Scholar. References to the papers reprinted herein will be in accordance with the pagination of this volume. Those who use it may be glad to know of what, although it was published previously, could have served as an excellent Critical Notice. This is Loftsgordon's, Donald “Present-day British Philosophers on Punishment” (1966) 63 J. of PhilosophyCrossRefGoogle Scholar.
3 Acton, at 39.
4 Ibid.
5 Ibid., at 47.
6 Ibid., at 48. In developing the point that “This choice is not Hobson's. Other methods may be considered”, Mabbott reviews the bizarre proposals of State and Revolution; which, since it was written in 1917, and Lenin died in 1924, it is not correct to describe as “an early work” (p. 50).
7 “Two Concepts of Rules”, in (1955) 64 Philosophical Review, reprinted in Acton, supra n. 2, at 105.
8 A Treatise of Human Nature III (ii) 2, p. 497Google Scholar in Selby-Bigge.
9 “On Punishment” (1954) 14 Analysis, reprinted in Acton, supra n. 2, at 59.
10 In modern terms the whole discussion is concerned with the sphere of tort rather than of criminal law: this “looks only at the degree of damage done, treating the parties as equal, and merely asking whether one has done and the other has suffered injustice, whether one has inflicted and the other has sustained damage. Hence the unjust being here the unequal … the judge endeavours to make them equal by the … loss he imposes, taking away the gain” (1132A5-11). And that is all.
11 Acton, supra n. 2, at 48.
12 Wilson, James Q., Thinking about Crime (New York, Vintage, 1977) 208Google Scholar.
13 “Warden Clinton Duffy of San Quentin … stated that the electric chair, or even prison itself, constitutes no deterrent because ‘convicts have told me so again and again’”: ibid., at 217.
14 Many of those employed as social scientists apparently believe that their cloth requires them to offer this grotesque falsism as a finding. Thus, for instance, Tannenbaum's, FrankCrime and the Community (Boston, Ginn, 1938)Google Scholar declares that punishment “does not deter … [nor] does it act as a deterrent upon others …”, at 478; and Reckless, Walter, The Crime Problem (New York, Appleton-Century-Crofts, 4th ed., 1967)Google Scholar concludes that it “does not prevent crime in others or prevent lapse into crime”, at 508. For an examination of some of the faults of method and logical fallacies leading to this preposterous sociological revelation see Tittle, Charles, “Punishment and the Deterrence of Deviance”, in Rottenburg, Simon, The Economics of Crime and Punishment (Washington, D.C., American Enterprise Institute, 1973)Google Scholar.
15 Koestler, A., Darkness at Noon (Harmondsworth, Penguin, 1940) 91 and 143Google Scholar.
16 This point was usefully developed by Crombie, I. M. in his “Social Clockwork”, first published in MacKinnon, D. M., ed., Christian Faith and Communist Faith (London, SCM Press, 1953)Google Scholar.
17 Option rights, such as those proclaimed in the American Declaration of Independence, are rights to be left alone and unharmed. Welfare rights, many of which are listed in more recent declarations, are rights to be supplied with some good, presumably by that many-headed monster The State. For an attempt to provide a rationale for the former, while denying any to the latter, see my “Could There be Universal Natural Rights?”, in (1982) 6 J. of Libertarian Studies 277–88Google Scholar.
18 Against those urging that Christians must be concerned primarily or exclusively with deterrence and reform Pope Pius XII objected: “But the Supreme Judge, in His last judgment, applies uniquely the principle of retribution. This, then, must be of great importance”. See his Address to the Sixth International Congress of Penal Law in October 1953.
19 Rawls, John, A Theory of Justice (Cambridge, MA., Harvard U.P., 1971) 579Google Scholar.
20 See, for pressings of this charge, Matson, Wallace, “What Rawls Calls Justice”, in The Occasional Review (San Diego, CA., World Research, 1978) No. 8/9Google Scholar and my own The Politics of Procrustes (London, and Buffalo, N.Y., Temple Smith, and Prometheus, 1981) chap. IIIGoogle Scholar.
21 For support for the claim that this definition is wrongly rejected by Plato's Socrates, and for a more comprehensive consideration of the relations and lack of relations between Rawls and Plato, as well as Rawls, and Aristotle, , see my “Justice: Real or Social?” (1983) 1 Social Philosophy and Policy 151–73Google Scholar.
22 Vol. II, p. 27 in the 1843 Bowring edition of the Works; and compare Little, I. M. D., Welfare Economics (Oxford, Clarendon, 1957) 259Google Scholar and passim.
23 Rawls has his own short way of dealing with this difficulty. In what is perhaps the most breathtaking move in the entire book, he early dismisses as morally irrelevant everything which could constitute a ground for any individual differences of desert or entitlement: “Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in the quest for political and economic advantage, we are led to these principles. They express the result of laying aside those aspects of the social world that seem arbitrary from a moral point of view” (p. 15). For a fuller critique of “these principles”, and an account of how Rawls denies desert, and takes no notice of undeserved entitlement, see Flew, supra n. 20, at chap. IV.
24 Very like, but not exactly the same. For though at first he allows that “Inequalities are permissible when they maximize, or at least all contribute to, the long term expectations of the least fortunate group in society” (p. 151) — which might lead us to hope that he would also permit those causing no actual harm to anyone else — he later insists that we are to regard the distribution of natural abilities as a collective asset, so that the most fortunate are to benefit only in ways which will help those who have lost out” (p. 179: emphasis added). These are two of the very many passages which make it hard to understand why Rawls should be thought to be a liberal.
25 For a revelation of the concealed costs of this misrepresentation, see my “The Concept and Conceptions of Justice” (1985) 2 J. of Applied Philosophy 191–6CrossRefGoogle Scholar.
26 The Theory of the Moral Sentiments, vol. II, (ii) 1Google Scholar.
27 Utilitarianism (Everyman edition) 44.
28 Someone — Was it Oscar Wilde? — once claimed that Life imitates Art. This seems to be an instance. For Menninger's ortho-psychiatrists are the realization of the fictitious Straighteners in Samuel Butler's Erewhon.
29 Menninger, Karl, The Crime of Punishment (New York, Viking, 1968) 17Google Scholar.