Christopher J. Buckley

Contemporary political philosophers distinguish between two principle theories of justifying punishment. First, the retributive approach maintains that punishment should be equal to the harm done, either literally an eye for an eye, or more figuratively which allows for alternative forms of compensation. The retributive approach tends to be retaliatory and vengeance-oriented. The second approach is utilitarian which maintains that punishment should increase the total amount of happiness in the world. This often involves punishment as a means of reforming the criminal, incapacitating him from repeating his crime, and deterring others. I will detail, and give examples, of these theories below. I shall also introduce a new third approach which is put forward by many an ever-growing number of contemporary political philosophers.

So, what is utilitarianism?

Utilitarianism is the ethical theory proposed by Jeremy Bentham and James Mill that all action should be directed toward achieving the greatest happiness for the greatest number of people. (Jones, B. 1998.
First the retributive approach. This is also known as the deserts theory, which Is defended in its strongest form by the philosopher, Kant (Miller, D. 1987). Kant argues that the voluntary commission of an offence constitutes both a necessary and sufficient condition for justified punishment, by reason of the moral desert of the offender, culpability being a prime function of the state of the mind with which the offence was committed, (examples of this include, intention, recklessness or more controversially, negligence ) combined with the seriousness of the crime which the offence has inflicted. Supporters of the retributive approach, the offender’s desert indicates not only who may be punished and for what reason but also what measure of punishment is justified; that which is proportionate to the offenders culpability.

So, if a crime is one where what is taken cannot be repaid - murder, rape, battery, irreplaceable property loss, defamation of character, etc. – it is credible to suggest that something else, bar money, must be paid instead. Be it by the labour of the guilty party or by other means to make amends in whatever way possible for what was taken. The primitive law of the talion “and eye for an eye and a tooth for a tooth” has now been displaced by a more subtle approach to the explication both of the desert principle and of the relationship of equivalence or proportionality between offence and punishment. (Miller, D. 1987)

This approach can be perhaps best understood in the context of the social contract view of a political society. This argues that when an offender voluntarily breaks the criminal law, they take an unfair advantage compared with their fellow, law abiding, citizens. This in turn creates a “moral disequilibrium” (Miller, D. 1987 p409) which must be redressed by punishment, the severity of which is dictated by the need to remove the unfair advantage – be it great or small.

Contrasting this is the utilitarian approach (or consequential position), which was illustrated in the works of Bentham (in: Miller, D. 1987). Bentham seeks to justify punishment not on the basis that it is a fair response to past voluntary action but on the basis that it is effective in increasing the balance of pleasure over pain in society – typically by deterring future offences by both the offender and the citizens in society. There are many different beneficial consequences claimed by utilitarian writers to justify punishment by the state. Negating the individual and general deterrence secured by the unpleasantness of the experience of punishment, combined by the threat of its infliction, writers argue that punishment should be used to reform or rehabilitate the offender, in effect to educate and maintain moral standards in society. The offender must denounce the crime he has perpetrated to satisfy the grievance desires of the victim(s) and to uphold respect for the justice system.

All utilitarian theories share the common feature that they are in principle susceptible of empirical validation - sharply contrasting to the retributive model. Utilitarians argue that the retributivist theory is laden with mystery and confusion and that when it symbolic language is cleared away, what we are basically left with is a mere axiom that past culpable acts generate a reason for present punitive action on the basis of desert; a proposition that swings dangerously close to the contention that two wrongs make a right (Miller, D. 1987). Opponents of retributivism argue that a theory which would seek to dictate punishment even where it would achieve no individual or social benefits is pointless and unjust. Further doubts are raised about the capability of the retributive theory when compared to criminal justice systems similar to our own: does all offending really involve moral culpability? How can retributivism being to explain the fact that we believe that not all actions which are morally culpable should be proscribed and punished by criminal law? (Miller, D. 1987).

These arguments don’t point so much to the incoherence of the desert principle but rather to its need for supplementation by arguments about the nature of the obligation to obey the law and the proper limits of the criminal law. They nevertheless add to the impression the retributivism alone cannot capture all that is important about the practice of punishment. Cesare Beccaria (1738-1794) was born the eldest son in an aristocratic family and educated at a Jesuit school. In his mid twenties Beccaria became close friends with Pietro and Alessandro Verri, two brothers who formed an intellectual circle called “the academy of fists” which focused on reforming the criminal justice system. Through this group Beccaria became acquainted with French and British political philosophers, such as Hobbes, Hume, Diderot, Helvetius, Montesquieu, and Hume. At the encouragement of Pietro, Beccaria wrote On Crimes and Punishments in 1764. Beccaria agreed with two philosophers’ theories: social contract and utility. In retrospect to social contract Beccaria pointed towards punishment as justified only to defend the social contract of citizens and to make sure that all persons followed this standard. In regards to utility Beccaria stressed that the method of punishment selected should be one that helps the public. In his efforts to direct the justice system he discovered that some philosophers had two principle theories justifying punishment. Number one on the list was retributive approach, which states that punishment should be equal to the crime. In other words “an eye for an eye.” This method falls into a revengeful style of punishment. (http://www.fordham.edu/halsall/mod/18beccaria.html)

Beccaria takes a utilitarian stance. He truly believes that punishment should deter others from acting in the same manner. This punishment should also take place quickly. The sentencing should be in a speedy manner. This will connect the “crime” and the “punishment” in the convict’s mind making a clear connection between crime and punishment equalling. (Beccaria, C. 1764) Beccaria also believed that punishment should equal the crime point blank, out of all the crimes treason is the worst, because it breaks down the social contract. Beccaria believes that capital punishment is not the best deterrent. He says that long term imprisonment is the key to deterrence. People value their right of life more than anything else. Capital punishment should be preformed only if it benefits the public and is truly needed depending on the situation. Capital punishment fails to deter determined criminals from committing extreme crimes. Keeping people on lock down is more deterring then taking their life. (http://books.guardian.co.uk/lrb/articles/0,6109,374423,00.html)
It can be argued that utilitarian theories seemingly seem to accommodate the view that the state needs to punish offenders, but they also fail to accommodate equally strong intuitions about whom it is right to punish. Doubts can also be raised about whether a utilitarian theory can generate an adequate principle limiting the amount of punishment, given the gains to be made in deterrent terms by occasional especially severe sentences when a particular form of offending has become prevalent.

Unsurprisingly a third category of punishment has emerged towards the latter half of the century. They can be called mixed theories as they aim to incorporate the insights of both their retributivist and utilitarian predecessors. Hart in his article “Prolegomenon to the principles of punishment” (1959: in Miller, D et al. 1987) argues that the way forward to theorise about punishment lies in three separate questions. The first was that of definition of punishment, second was the question of the general justifying aim of punishment – why a society has an institution of punishment at all and thirdly the question of liability to punishment. Furthering the last question, hart argued that there were two aspects: that of distribution, or who may be punished, and that of amount, or how much they can be punished. Hart argues that it then becomes clear that it is possible to give a retributive answer to one and a utilitarian answer to the other. Thus his own position was that the general justifying aim of punishment is utilitarian whereas the question of distribution should be addressed in retributive terms: only an offender may be punished and only for an offence committed voluntarily. The issue of amount can be answered in part by reference to the retributive principle of proportionality, and partly by utilitarian considerations. We are therefore left with a theory combining a strong utilitarian component in which the pursuit of utility is limited by an independent principle, based on the value of fairness, which cannot simply be absorbed into a utilitarian calculation.

Guided by Hart’s works, others have sought to answer the question regarding the general justifying aim in retributive terms, but have subjected this to a limiting utilitarian principle. Thus, desert is argued to be a necessary, but not sufficient, condition for punishment – it would only be just to punish a deserving offender if there were also compensating social benefits to be gained by doing so. Their attractions of such mixed theories of punishment are palpable, but their development has not led to any greater consensus about the justification of punishment. (Miller, D. 1987).

Using Hart’s theory as an example, our difficulty lies in the fact that most people are not willing to contemplate the principle of retribution in distribution as an absolute constraint on the pursuit of social goals. This is reflected well if you look at the widespread existence of the no-fault criminal liability; typically in areas where the penalties are not harsh and where the advantages of strict liability in terms of preventing socially harmful behaviour are expected to be significant. Thus suggests that even in the relatively normal cases, we are in fact willing to balance the values of fairness and utility in just the way which Hart dismisses. It becomes clear that only a pluralistic theory will turn out to be adequate to accommodate societies idea of what is right and proper in the area of punishment. The difficulty comes when you attempt to reconcile the consequentialist and retributive principles at a deeper level than has so far been achieved. This would almost certainly have to be by way of a greater effort to reflect about punishment in the context of all the other features which craft a just society.

There is, thus, a strong argument that until we think about punishment in a natural theoretical context, will progress ever be made towards the development of a theory which is both coherent and pluralistic.

Bibliography:
Beccaria, C. (1764) On Crimes and Punishment trans. 2nd ed (1963) H. Paolucci. Indianapolis: Bobbs-Merrill.
Hart, H.L.A. (1959) Punishment and Responsibility, Clarendon Press: Oxford.
Jones, B. 1998, Politics UK, 4th Edition, Gosport, Prentice Hall p.82.
Mill, J.S.(1972) Utilitarianism, On Liberty and Considerations on Representative Government, Dent, London.
Miller, D et al. (1987) The Blackwell Encyclopaedia of Political Thought, Basil Blackwell : New York.
Pappas, N. (1995) Routledge Philosophy Guide to Plato and the Republic, London: Routldge.

Riley, J. (1998) Routledge Philosophy Guide to Mill on Liberty, London: Routledge.

Rousseau, J-J. (1968) The Social Contract, Penguin, Harmondsworth.

Thomas, D. L. (1995) Routledge Philosophy Guide to Locke on Government, London: Routledge.

http://www.garlikov.com/writings.htm
http://books.guardian.co.uk/lrb/articles/0,6109,374423,00.html
http://www.utm.edu/research/iep/j/justific.htm
http://www.utm.edu/research/iep/c/capitalp.htm