Week 6
PUNISHMENT
REVIEW & BACKGROUND
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Finished Unit 1: Principles of Criminal Law
Beginning unit 2: Perspectives on Criminal Law & Justice
Lectures will supplement readings
Goals:
o Strong understanding od select theories
o Apply theories in a responsible way
 Understand what you are reading
 Respect the reading & author
 Recognize when the theory doesn’t fit
Not just cramming out brains with “stuff”
o But learning how to be a thinker
Background
Theory as a lens
 Purpose
o Different perspective
o New insights
 Theories are not perfect
o Always changing
o Wrong to apply theory in a blunt way
Renaissance
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Circa 1300 – 1600
Europe: Not everywhere, equally
Cultural movement with developments in multiple areas: art, technology,
science, religion
New ideas about humanity
Move away from divine right
Sets stage for enlightenment era
o Emergence and flourishing of liberal philosophy
LIBERAL PHILOSOPHY OVERVIEW
 Liberty, equality, tolerance, individualism
After renaissance
 Enlightenment: Age of reason
o Circa 1600-1800
o Rise of nation state
o Colonization of new world
 Peak of slave trade
o Scientific discovery: electricity, gravity
o Rise of liberal philosophy
John Locke
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If land is not being used properly, you can take it
1632 – 1704, England
Week 6
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“Father” of liberalism
Separation of church and state
Property as a right
Emphasis on tolerance and reason (during a time of colonization)
Revolutionary Era
USA
 “Life, liberty, and the pursuit of happiness”
 Declaration of Independence (1776) and Constitution (1787)
Europe
 French revolution
o “Liberty, Equality, Fraternity”
o Declaration of the Rights of Man and of the Citizen” (1789)
 Everyone feared their country would be next
Liberal Philosophy
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Liberty and equality are great principles in theory
o How can they be promoted and protected in reality?
Find a balance between order and liberty
What are the responsibilities of the citizen?
What are the responsibilities of the state?
Different answers lead to different ways of punishment
Punishment
Given the high value that liberal philosophers place on liberty, punishment
is a hotly debated topic
o Purpose
o Scope
o Justification
Two views on Punishment
• Taking away the liberty of one because (s)he infringed on the liberty of
another
o Retributive: Immanuel Kant
• Taking away the liberty of one person to protect the liberty of many and
the justice system of a whole
o Utilitarian: John Rawls (making an example out of someone)
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KANT ON PUNISHMENT
Immanuel Kant
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1742 – 1804, Prussia
Identified as a German Philosopher
Major philosopher, especially in liberalism
Second Copernican revolution
Radical (at the time) views about individual autonomy
Main Argument
Right of Retaliation
• “The only principle, which in regulating a public court… can definitely
assign both the quality and the quantity of a just penalty” (145)
• For punishment to both stand and serve for justice…
Week 6
It requires equivalency: “an eye for an eye”
(retaliation/retribution)
Cannot make an example out of someone (especially an innocent) in
the name of greater good
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RAWLS ON PUNISHMENT
John Rawls
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1921 – 2002, USA
Liberal philosopher
Famous for Theory of Justice (1971)
Main Argument
“Bygones are bygones…only future consequences are material to present
decisions” (5)
• Punishment is justifiable only by reference to the probable consequences
of maintaining it as one of the devices of the social order” (5)
Punishment is Justifiable
• Only if it serves and promotes the good of society
• Task of establishing equivalent between suffering and immoral act is
“improper”
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RECAP & NEXT CLASS