Does the Justification of Punishment Rest on a Mistake?
Leo Zaibert
Oxford Jurisprudence Discussion Group, November 14 2013
0. Overview: Rethinking Punishment
1. In the first sentence of H. L. A. Hart’s famous “Prolegomenon to the Principles of Punishment”, he
openly admitted that his main goal was to show that “any morally tolerable account of this institution
[criminal punishment] must exhibit it as a compromise between distinct and partly conflicting principles”.
Hart was motivated by “the suspicion that the view that there is just one supreme value or objective (e.g.
Deterrence, Retribution, or Reform) in terms of which all questions about the justification of punishment
are to be answered, is somehow wrong”.
1.1. Hart’s proposed “mixed” justification was, however, flawed; as were many others which either turned
retributivism into a merely semantic thesis (Quinton), or deployed the “two question strategy (Rawls).
1.2. But even had it been successful, the proposed mixing would have remained uninspiring: at best, it
would have mixed only two things – retributivism and consequentialism (after all, deterrence and reform
are both forms of consequentialism).
1.3. This expansion, from one supreme value to two supreme values, is an extremely humble expansion of
an enterprise which Hart (rightly) thought needed expanding.
1.4. And it is also extremely unimaginative: the assumption is that all that retributivism lacks
consequentialism can supply, and vice-versa.
1.5. Retributivism and Consequentialism: Deontology and Teleology. What is needed is a compromise
between different types of values (including, inter alia, moral, aesthetic, and what Glassen called
“charientic” values).
1.6. My approach differs from other approaches with which it could perhaps be confused:
1.6.1.: I am not interested in the history of ideas (Enlightenment’s and modernity’s foibles, etc.).
1.6.2.: I am not necessarily endorsing virtue ethics in moral philosophy.
1.6.3.: I am not endorsing the “aretaic turn” in criminal law theory.
1.7. My project is analytical (though also evidently normative): when it comes to the justification of
punishment, there is ample conceptual room for more values to come into play.
2. Bernard Williams’s dissatisfaction with what he dubbed the “morality system” can be usefully
extended to the analysis of the justification of punishment.
2.1. Williams objects to the typical understanding of moral obligation: “in terms of the output or
conclusion of moral deliberation”. Insightfully, Williams suggests that “there are actions (also policies,
attitudes, and so on) that are either more or less than obligations. They may be heroic or very fine actions,
which go beyond what is obligatory or demanded. Or they may be actions that from an ethical point of
view it would be agreeable or worthwhile or a good idea to do, without one’s being required to do them”.
2.2. The “morality system” seeks to solve this “problem” by attempting to reduce these other ethical
phenomena to garden-variety obligations. And this is infelicitous for three reasons, which I present in
increasing order of importance.
2.2.1. The maneuver is at odds with ordinary language
2.2.2. The maneuver has difficulties “finding room for morally indifferent action”, and it may eventually
come to “dominate life altogether”.
2.2.3. The maneuver inescapably generates an “economy of morality” – an economy linked to certain
narrow “administrative ideas of rationality”. Williams suggests that the morality system wants to operate
with a principle that “may be called the obligations-out, obligations-in principle”. And this economistic
ethos is too much at home in the world of accounting and bookkeeping, such that obligations can be
added to and detracted from each other neatly. The broadening of the types of values that matter would
allow us to resist the allure of these over-simple operations.
2.3. The way in which this has affected punishment theory: if punishment is “justified” then it is neatly
unproblematic to inflict it. Too neatly indeed.
2.4. As he sought to avoid this maneuver, Williams placed great emphasis on the notion of “importance”:
some things are important or, as he put it “important, period”, in the sense that they matter, whether or not
they issue or should issue in action.
2.5. Contra skeptics about desert, the fact that some people deserve to suffer is important in this sense.
Contra consequentialists, punishing the deserving is importantly good. And this importance does not just
go away once we decide that we are, or that we are not, justified in punishing a person.
2.6. One important way to flesh out the notion of importance is by attending to Williams’s famous
distinction between thin and thick moral terms. “Justified” within the context of punishment theory is the
thin concept par excellence – and it has crowded out all other, thicker assessments of punishment.
2.6.1. But justified punishment can still be repugnant, or inhumane (say, Billy Budd); and unjustified
punishment can be, in a way, beautiful (say, Sholom Schwartzbard’s killing of Simon Petliura).
2.7. We could think of two different senses in which punishment could be justified: a thin sense (the one
which monopolizes the attention in the specialized literature) and a thick (or thicker) sense (the one to
which I suggest we should pay more attention.)
3. But the “thick justification” may be resisted, and dismissed as a mere problematic instance of the “new
romanticism”. As an example of such resistance I wish to discuss Antony Duff’s “The Intrusion of
Mercy”. (I am not here interested in mercy per se, but rather in the suggestion that the justification of
punishment should remain a “thin” enterprise.)
3.1. The defense of the thin status quo starts by suggesting a sharp distinction between state punishment
and other forms of punishment. But almost immediately after this distinction is invoked it is ignored.
3.2. The thesis is that we sometimes ought to be merciful, but only because on those occasions
communication would otherwise be impossible. (Communication is crucial for Duff’s justification of
punishment, and it straddles both retributive and consequentialist rationales, though it does not transcend
them.)
3.2.1. Communication, however, is not so central. And mercy can sometimes trump punishment
independently of mercy.
3.3. Communicatively (or purely retributively, or purely consequentialistically) inspired, the standard
view is to see the infliction of criminal punishment to be part and parcel of a strictly delimited “game”, in
which people are supposed to “perform” their perfectly scripted, and perforce thin, “roles”.
3.4. The normativity of games is, however, rather humble, and it is not sufficient to account for all the
different aspects related to our practice of punishing people.
3.5. Defenders of the thin status quo also fear that expanding the sorts of values with which a richer
justification of punishment ought to be concerned is problematic in that it is at odd with cherished liberal
values,
3.5.1. While I share those values too, I think that to perhaps “violate” liberal values concerning, say,
privacy, in order to protect individuals from punishment by the state is in fact a way of asserting the
dearest value to any liberal.
3.6. Inflicting punishment is always a matter of conflicting values. It is always a dilemma – even when it
is justified. Even when punishment is justified, as it sure is sometimes, moral remainders obtain – and we
ought to somehow do justice to these remainders. The typical, thin, justification of punishment cannot do
this.
3.7. Admittedly, I have not shown how exactly to take these remainders into account, or what the exact
implications of doing so would be. But I would at this stage be satisfied if I have compellingly argued for
the existence of a mistake in the way we think about punishment. The extraordinary amount of injustice
generated by criminal justice systems, even those of advanced democracies, coupled with the
shortcomings of the typical defenses of the status quo (such as Duff’s), suggests taking seriously
something like the thicker justification which I have here (merely) sketched.