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Trust and Obey: Toward a New Theory of Punishment1

Published online by Cambridge University Press:  16 February 2016

David A. Hoekema
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Extract

An impartial observer reviewing the Anglo-American philosophical writings of recent decades on the question of the justification of punishment would very likely label the contest, thus far, a draw. Three major justifications have been put forward as principles constitutive of fairness in punishment, and none can be said to have routed its rivals.

Some modern writers have written forcefully in defence of the rehabilitative justification of punishment — or, more precisely, the replacement of punishment with a system of judicially mandated therapy for criminals. This substitution, however, has been tellingly criticized as demeaning to offenders, violative of individuals' moral rights, and liable to abuse as a pretext for suppression of unpopular ideas. Others have sought to justify punishment on the basis of the societal need to deter crime. But deterrence seems at the same time too severe and too lenient a basis for punishment. Draconian penalties for minor offences and exemplary punishment of the innocent would meet the requirements of deterrence if they proved effective in preventing future crimes; yet offences whose nature or whose pattern of occurrence makes effective deterrence impossible should go unpunished, on this view.

Type
Theories of Justice and the Problem of Punishment
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 332 - 350
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

2 A version of the rehabilitative view, emphasizing the educative function of punishment, is defended by Ewing, A. C. in The Morality of Punishment (London, Kegan Paul, Ltd., 1929)Google Scholar. Rehabilitative arguments have been put forward by a great many psychologists and psychiatrists; among the best-known are Menninger, Karl, The Crime of Punishment (New York, Viking Press, 1968)Google Scholar, and Skinner, B. F., Science and Human Behavior (New York, Macmillan Publishing Co., 1953)Google Scholar.

3 See Hoekema, David A., “The Right to Punish and the Right to Be Punished”, in Blocker, H. Gene and Smith, Elizabeth, eds., John Rawls' Theory of Social Justice, An Introduction (Athens, Ohio, Ohio U. P., 1980)Google Scholar; Morris, Herbert, “Persons and Punishment” (1978) 52 The Monist 475–501CrossRefGoogle Scholar, reprinted in Melden, A. I., ed., Human Rights (Belmont, Calif., Wadsworth Publishing Co., 1970) 111–134Google Scholar; Lewis, C. S., “The Humanitarian Theory of Punishment”, in Hooper, Walter, ed., God in the Dock, Essays on Theology and Ethics (Grand Rapids, Mich., William B. Eerdmans, 1970) 287–295Google Scholar.

4 Classic defences of the deterrent view of punishment include Beccaria, Cesare, On Crimes and Punishment (1764), tr. Paolucci, Henry (Indianapolis, The Bobbs-Merrill Co., 1963)Google Scholar; and Bentham, Jeremy, An Introduction to the Principles of Morals and of Legislation (1789) (New York, Hafner Publishing Co., 1948)CrossRefGoogle Scholar.

5 The classic statement of the retributive theory is in Kant, Immanuel, The Metaphysics of Morals (1797)Google Scholar, tr. Nisbet, H. B., in Reiss, Hans, ed., Kant's Political Writings (Cambridge, Cambridge U. P., 1971) esp. section 49Google Scholar. Retributivism is also defended by Hegel, G. W. F., Philosophy of Right (1821), tr. Knox, T. M. (Oxford, Oxford U. P., 1942)CrossRefGoogle Scholar and, in this century, by Bosanquet, Bernard, The Philosophical Theory of the State (London, The Macmillan Co., Ltd., 1923)Google Scholar.

6 Honderich, Ted, Punishment, The Supposed Justifications (Harmondsworth, Middlesex, Penguin Books, 1969)Google Scholar. After surveying traditional views of punishment he concludes: “Whatever the popularity of these four views, it seems to me established that none of them is defensible” (p. 148). Honderich subsequently argues that “there is a justification which a practice of punishment in a conceivable society might have”, a justification that turns on the re-establishment of conditions of equality, but that “practices of punishment in our societies as they are” cannot be justified (p. 186).

7 Rawls, John, “Two Concepts of Rules” (1955) 64 Philosophical R. 3–32CrossRefGoogle Scholar; reprinted in Foot, Philippa, ed., Theories of Ethics (Oxford and New York, Oxford U. P., 1967) 144–170Google Scholar.

8 Hart, H. L. A., “Prolegomena to the Principles of Punishment”, in Punishment and Responsibility (Oxford, Oxford U. P., 1968) 8–13Google Scholar.

9 David A. Hoekema, “The Right to Punish and the Right to Be Punished”, supra n. 3; Rights and Wrongs, Coercion, Punishment and the State (Selinsgrove, PA, Susquehanna U. P., 1986), chap. 10Google Scholar, “The Justification of Punishment”.

10 Wasserstrom, Richard, “Punishment”, in Philosophy and Social Issues (Notre Dame, Ind., Notre Dame U. P., 1980) 112–151Google Scholar. Wasserstrom finds all of the proposed justifications of punishment insufficient and concludes that “whether it is right to punish persons and, if so, for what reasons are, I think, still open questions both within philosophic thought and the society at large” (p. 146).

11 Bamett, Randy E., “Restitution, A New Paradigm of Criminal Justice” (1977) 87 Ethics 279–301Google Scholar, and (an expanded version of the same article) in Barnett, Randy E. and Hagel, John III, eds., Assessing the Criminal (Cambridge, MA, Ballinger Publishing, 1977) 349–383Google Scholar. Barnett replies to a number of criticisms of his proposals in “The Justice of Restitution” (1980) 25 Am. J. of Jurisprudence 117–132CrossRefGoogle Scholar.

12 Barnett, “The Justice of Restitution” ibid., at 129.

13 Barnett, “Restitution”, supra n. 11, at 292.

14 The economic model, implicit in Barnett's articles, is articulated even more clearly by Hajdin, Mane in “Criminals as Gamblers, A Modified Theory of Pure Restitution” (1987) 26 Dialogue, Can. Philosophical R. 77–86CrossRefGoogle Scholar. Hajdin's major emendation of Barnett's proposal is the suggestion that criminals should pay a surcharge over the fair compensation for each crime, the funds to be used to compensate crime victims who receive no compensation from those who wronged them.

15 The most influential defender of such a theory of distributive justice, cited frequently by Barnett and other defenders of restitution, is Nozick, Robert in Anarchy, State and Utopia (New York, Basic Books, 1974)Google Scholar.

16 Barnett acknowledges that “a fully satisfactory solution to this problem is lacking”, (“Restitution”, supra n. 11, at 292) but justifies his failure to resolve it by observing that retributivism faces a parallel problem of commensurability between crime and punishment.

17 I ignore here Barnett's suggestion that private insurance companies should enforce such claims on behalf of individuals, see “Restitution”, supra n. 11, at 291-92, 298. Such a scheme seems certain to lead to either perpetuation of gross disparities between justice for the rich and justice for the poor or — if companies are required to provide subsidized insurance for the poor — to just the sort of redistribution it is supposed to prevent. The insurance scheme, which on first reading may appear an ironic reductio argument against the entire restitution theory, seems to be intended seriously.

18 Barnett, “The Justice of Restitution”, supra n. 11, at 118-120.

19 Recognizing the worthlessness of a monetary judgment against an indigent offender, Barnett offers a proposal for “employment projects” at which offenders would be confined until their debts are paid. This revival of the workhouse is nothing more than punishment in restitutive clothes. It is in some ways an attractive proposal for prison reform, but in forcibly confining the criminal to work at a state-established site it goes far beyond the limits of pure restitution.

20 Barnett, “Restitution”, supra n. 11, at 296.

21 Hampton, Jean, “The Moral Education Theory of Punishment” (1984) 13 Philosophy and Public Affairs 208–238Google Scholar. See also Morris, Herbert, “A Paternalistic Theory of Punishment” (1981) 18 Am. Philosophical Q.Google Scholar and Nozick, Robert, Philosophical Explanations (Cambridge, MA, Harvard U. P., 1981) 363–397Google Scholar.

22 Hampton, ibid., at 214.

23 Ibid., at 236.

24 Ibid., at 219.

25 Hampton insists that punishment must represent the crime and that, for this purpose, a measure of deprivation is necessary. But it is not clear that she can ground this requirement in educative, as opposed to retributive, reasons.

26 Baier, Annette, “Trust and Anti-Trust” (1986) 96 Ethics 231–260CrossRefGoogle Scholar; “What Do Women Want in a Moral Theory?” (1985) 19 Nous 53–63CrossRefGoogle Scholar.

27 Bok, Sissela, Lying (New York, Pantheon Books, 1978) 31nGoogle ScholarPubMed; quoted as an epigraph to Baier, “Trust and Antitrust”.

28 Baier, “Trust and Antitrust” supra n. 26, at 235.

29 Ibid., at 234.

30 The moral judgment defended here is often flouted in actual practice, since our courts are often severe in punishing abusers of strangers' children and lenient toward abusive parents; but this pattern seems to me utterly without justification from a moral standpoint.

31 The conference for which this paper was prepared occurred a few months after the beginning of the intifada in the West Bank and Gaza Strip. Before the formal opening of the conference I was able to attend part of a conference on the occupation held under the sponsorship of Bir Zeit University in East Jerusalem. A planned evening discussion between faculty members from West Bank universities and participants in the Israeli-sponsored conference unfortunately coincided with an unexpected prohibition on travel to or from the occupied territories, and the discussion proceeded in the absence of the Palestinian guests. In response to the likely discussions of that session and the presentations at the Bir Zeit conference, I appended a final page to my paper in which I noted that the relationship between Israeli military authorities and the population of the occupied territories, and in particular the widespread practices of detention without charge and exemplary punishment, both reflected and exacerbated a fundamental lack of trust. I have omitted that portion of my paper here, both because its content is no longer so timely as it was and in order to concentrate on the underlying philosophical issues rather than on political controversy. As this printed version is submitted, the political situation is essentially unchanged, but both Israeli and Palestinian authorities have given some signs, in the halting first steps toward negotiation, of a willingness to extend a larger measure of reciprocal trust. It is my hope that these initial steps will yield fruit, and that the voices for peace and moderation that I heard frequently from both Israeli and Palestinian colleagues will prevail.