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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 8
CRIME AND PUNISHMENT
Introduction
Philosophy has provided a number of important theories about the nature of our responsibility
for criminal conduct and the justification of punishment. These two issues are related. The
nature and amount of punishment we consider appropriate for a crime is closely related to the
reasons we believe people should be held responsible.
Why do we punish people?
Anglo-American jurisprudence usually distinguishes between the mens rea or criminal intent
of an offender, and the actus reus, the criminal act. The necessity for each element to be
present in regard to most crimes reflects the underlying doctrine of the criminal law that
people are not punished merely for wicked intentions if those intentions have not been acted
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April 2004
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upon, nor for causing harm where it occurred through accident or in the absence of a
blameworthy mental state. The usual mens rea for a criminal offence is that the criminal has
intended the consequences which occurred, or acted with reckless indifference to whether
such consequences were caused.
The problem of moral luck and free will
The doctrine of mens rea in the criminal law reflects a belief about the nature of human
conduct. Most of us believe that we choose to engage in our intentional conduct, that we
could have chosen otherwise, and that this process of choice involves some form of mental
act. Only being responsible for those actions that we have intentionally chosen ensures that
we have some control over life. Imagine being criminal liable for anything that you caused,
even accidentally. Further, whether the punishment is based upon deterrence or upon
retribution, it seems to make more sense to punish people where they have chosen to do
wrong rather than in instances where they have caused harm but could not have avoided it.

Many have argued that our system of criminal law thereby assumes that we have a free
will. Although some philosophers have accepted that we are able to alter our future
through completely unconstrained mental choices, science appears to present us with a
picture of the universe determined by physical law and without room for the existence of a
notion of free will.

In suggesting that the punishment should be proportionate to the crime we usually intend
that what makes crimes of greater or lesser significance is the extent of the offender’s
wickedness, governed by the extent of the intended harm.

The principles just referred to create a paradox for the criminal law. It appears hard to
justify different punishments because of different consequences where the different
consequences were purely the result of luck. (eg, The NSW Crimes Act provides for a
penalty of up to 10 years for causing death or serious injury driving under the influence of
liquor or a drug or at speed or in a manner dangerous. By contrast, traffic legislation
provides for a summary offence of driving in a manner dangerous with a much lesser
penalty. However whether one causes death or serious injury while driving in a manner
dangerous will usually have little to do with the intention of the offender).
Nagel and Williams in essays both entitled “Moral Luck” have argued that we can never
eliminate entirely an element of luck in the way in which we apportion moral or criminal
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responsibility.
The justifications of punishment
It has frequently been asserted that punishment is justified by one or a combination of the
following reasons: 
Rehabilitation

Deterrence

Retribution
Rehabilitation
The rehabilitative model represents criminal conduct as a symptom of a psychological
condition from which the offender should be cured. If it be possible to rehabilitate people
while they are being punished for other reasons there seems good ground for attempting
rehabilitation. Difficulties may arise where the demands of effective rehabilitation conflict
with effective punishment justified on deterrence or retributive grounds.
Deterrence
Deterrence justifications treat punishment as a means to an end. Contemporary deterrence
theories are often traced back to Bentham’s utilitarian moral philosophy. Bentham also wrote
on criminological and penological theory.

The utilitarian calculus treats any form of human suffering as a cost requiring justification
through the production of a greater and countervailing measure of human happiness.

From this perspective punishment of offenders will only be justified if the punishment
will have the effect of deterring the offender and other potential offenders from future
criminal acts that would, if committed have caused suffering in excess of the offender’s
suffering from being punished.
Leaving aside the practical difficulties of measuring the gains and losses, deterrence theories
raise a number of other issues.
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April 2004
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
Firstly, it treats the punishment of the offender not as something the offender deserves for
his wrong but as a means to the achievement of some other desirable social end. Some
argue that it devalues individual autonomy in treating people as means rather than ends.

It does not appear necessary from the viewpoint of the utilitarian calculus that a person
actually be guilty. If sufficiently many people believe the person punished was guilty and
are deterred by the example of that punishment, the punishment may be an effective
deterrent even if the prisoner be innocent.

Many utilitarians argue that if we did not strive to avoid punishing the innocent there
would be further suffering caused through the anxiety of the general population, fearful
that they might be the next victim of an undeserved episode of punishment. This might be
a practical reason why we would not usually punish innocent people, but it appears to be a
deficiency in the theory that it says that there is nothing in principal wrong with punishing
innocent people.

It also follows from the deterrence theory that the punishment need not be proportionate to
the crime.

The deterrence theory treats the suffering of the offender in being punished, and the
suffering of the victim, as of equal moral significance.

There are certain offences which appear undeterrable, deterrence theory would therefore
suggest we do not punish at all.
Braithwaite and Pettit argue for a modified theory of deterrence. They suggest that the error of
early deterrence theories was to advocate the maximisation of human happiness or welfare.
They suggest that punishment seeks to maximise the value of personal dominion. This value
reflects our autonomy and ability to control our own lives. If we punish in a fashion which
will seek to increase the importance of this value in society then we will not punish innocent
people and our punishment may also reflect in some fashion the proportionality principle but
we will also have the flexibility to adjust punishments to reflect rehabilitative and deterrence
aims. Why however, should we maximise only this value?
Retributive theories of punishment
Retributive theories have had a renewed popularity in criminological theory in the last thirty
odd years. Herbert Morris’ article “Persons and Punishment” (see course materials) was one
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of the first examples of the new retributivism.

Morris’ argument is firmly based on the principle of justice that a criminal deserves
punishment, because, having enjoyed the benefits of living in society, criminal conduct
reflects an attempt to evade the burden of obedience.

Punishing the offender deprives him or her of the unmerited advantage which he or she
would otherwise gain and hence restores a just equilibrium with all other members of
society in bearing the benefits and burdens of social life.

It is sometime objected to arguments akin to that of Morris’ that it assumes the offender
gained some benefit from their criminal conduct. This may seem improbable if it was a
spontaneous outburst of uncontrolled violence.

Sadurski in “Giving Desert Its Due” points out that it is not the benefit gained by the
criminal in breaking the law which merits punishment, but rather, the criminal’s rejection
or refusal to accept the restraints imposed by law on the conduct of us all, which brings
into play the principle of punishment.

Finnis also puts forward a retributive theory arguing that in breaking the law the criminal
has arrogated to him or herself a freedom of choice or liberty in action to which he or she
is not entitled. Punishment restores the balance or equilibrium by depriving the offender
of that liberty.
The advantage of retributive arguments
In suggesting that the justification of punishment lies in restoring some sort of equilibrium
between the obligations or burdens borne by the law abiding on the one hand, and the
offender on the other, retributivism can explain why we punish only the guilty and never the
innocent, since only the guilty have gained the unmerited advantage which calls for
punishment. Likewise, retributivism can explain the principle of proportionality. The graver
the offence the greater the burden of obligation or control the offender has repudiated and the
greater the punishment called for.
It is also said in support of the retributive justification of punishment that it treats people as
ends rather than means. It explains why offenders deserve their punishment and why we
should punish them regardless of the social benefit that might otherwise flow.
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April 2004
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Criticisms of the retributive viewpoint

The concept of proportionality while explicable in theory is hard to give effect to in
practice. How do I decide how much more punishment an armed robber deserves then
someone who commits a common assault?

The proportions awarded by the criminal law appear to be determined more by historical
and cultural factors then by some scale of objective moral dessert.

Strong retributivists argue that there should be no clemency or discounts. Indeed, it will be
unjust on this view to punish an offender any less than the amount that he or she deserves.

The retributive viewpoint may be difficult to reconcile with rehabilitative aims.
Mixed theories
HLA Hart in his work “Punishment and Responsibility” argued that we appeal to utilitarian
and deterrence type arguments in justifying the existence of a law or general rule. Thus, the
law against dangerous driving exists because of the general social good produced by having a
norm discouraging dangerous driving. On the other hand, Hart considered that in punishing
individual offenders one had to give recognition to a principle of justice which required that
they not be punished beyond the amount that would be proportionate to the offence.

Most sentencing judges argue that they take into account deterrence, retributive and
rehabilitative goals in arriving at the correct sentence.

Some might argue that some values may be pre-eminent over others.

Are we permitted to punish people more than they deserve for deterrence reasons?

Perhaps however we should discount punishment to reward informers.

The correctness of appealing to multiple value justifications of punishment depends upon
one’s general views about moral justification, and whether one accepts that there are a
plurality of moral values which need reconciliation, or whether there is a pre-eminent
moral value which will usually dictate the outcome in a case.

Usual sentencing practices reflect the plural approach.
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April 2004
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Teleological theories of punishment
Some philosophers (eg, Robert Nozick and Joel Feinberg) have argued that punishment is
justified as an expression of society’s values, and aims to bring the offender to the point of
recognising those values. On some of these theories it is important that the offender achieve a
state of repentance. It does seem important in the process of punishment that people know and
acknowledge why they are being punished.
On the other hand, teleological justifications appear insufficient as complete justifications.
How can I justify continuing to punish someone who has fully repented and fully accepted
society’s values?
Punishment, time and personal identity
A further major issue in the justification of punishment is the impact upon an offender’s
moral or legal responsibilities of the passage of time. Are we right to treat a person as a single
indivisible entity that persists throughout time? Does an offender deserve to be punished just
the same amount if caught 20 years after the offence, as when punished straight after the
offence?
Derrick Parfit argued for a reductive theory of personal identity. In this theory we are in a
sense not a single indivisible entity throughout our lives but a series of phases, albeit closely
connected ones. The term ‘person’ describes that bundle of phases, usually associated with a
specific body (but not perhaps in the future if we master brain transplants – or perhaps better
described as body transplants).
Parfit argues that in a real sense we are not the same person now as we were 20 or 30 years
ago. We have different memories, different values, different thoughts. This may affect the
extent to which we deserve to be punished for something we did long ago in our past.
Does memory loss affect our liability for punishment?
What if after having committed a crime I suffer a brain accident and lose the whole of my
autobiographical memory regarding my life at the time of the offence. Do I still deserve to be
punished even though I have no internal recollection or knowledge of having committed the
crime, or how or why I did it?
Christopher Birch
April 2004