PUNISHMENT

The word punishment is used in varying contexts. The punishment meted out by the state to a criminal or by a parent to his children is not the same as the punishment boxers give or receive. The latter, however, is punishment only in a metaphorical sense, for it lacks several of the features necessary to a standard case of punishment. Characteristically, punishment is unpleasant. It is inflicted on an offender because of an offense he has committed; it is deliberately imposed, not just the natural consequence of a person's action (like a hangover), and the unpleasantness is essential to it, not an accidental accompaniment to some other treatment (like the pain of the dentist's drill). It is imposed by an agent authorized by the system of rules against which an offense has been committed; a lynching is not a standard case of punishment. Philosophers who have written on punishment have usually had in mind punishment in the standard sense rather than in any extended or metaphorical sense.

The philosopher's interest in punishment is mainly connected with questions of justification. It is, prima facie, wrong to deliberately inflict suffering or deprivation on another person, yet punishment consists in doing precisely this. What conditions, the philosopher asks, would justify it? Or, more generally, what kind of consideration would count toward a justification? For instance, if a person had already committed a crime, that would clearly be relevant to the question of whether he ought to be punished (although it might not be conclusive). What if he were only expected to commit a crime in the future? Or, again, is it relevant to the question of whether this man should be punished to say that punishing him would deter others? And assuming that criminals ought to be punished, how should we set about deciding appropriate penalties?

It is not, of course, the business of the moral or social philosopher to provide a justification for any particular act or system of punishment or even of the institution of punishment in general. Philosophers are not necessarily apologists for their society and age. They are interested in the procedures and modes of argument that we are committed to by our fundamental conceptions of morality and in criteria of criticism and justification rather than in inquiries into whether actual institutions satisfy them.

Philosophers, it is true, have not always made this distinction; they have often worked on the understanding that a philosophical argument could be seriously shaken by showing that it leads to conclusions inconsistent with some widely approved institution or moral rule. Moreover, for many philosophers, if such a rule or institution seemed to imply a principle inconsistent with other moral principles accepted by the society, there must necessarily be some broader principle, which a philosopher could discover and by which the conflict could be resolved. Applied to the case of punishment, this would mean that a philosopher must reconcile the apparently conflicting principles that wrongdoers should be punished and that it is wrong to deliberately make another person suffer. But this is surely a misconception of the nature of philosophy. There is no point, after all, in asking whether and how punishment can be justified if one assumed in advance that it can. For justification a number of contingent facts are required that the philosopher as such is not qualified to provide. His task is to analyze what is being asked for and so to point out what kinds of facts and arguments are admissible to the discussion.

Justification of Punishment

The question of justification arises at two levels. One can take for granted the principle that wrongdoers should be punished and ask whether a particular case of punishment was justified. At this level the philosopher is concerned with the criteria in a general system which any particular act of punishment must satisfy. One can, however, question the very idea of punishment as an institution that involves deliberately inflicting pain or deprivation. This raises the philosophical question of how one justifies a set of rules or an institution like a penal system. Corresponding to these two levels of justification are two broadly opposed approaches to punishment, the retributivist and the utilitarian. Each, in fact, has been taken to offer an answer to the problems at both levels, but the persuasive force of retributivism is mainly in its answers to problems of the first type, and of utilitarianism to questions of the second type. Characteristically, the retributivist stresses guilt and desert, looking back to the crime to justify punishment and denying that the consequences of punishment, beneficial or otherwise, have any relevance to justification. The utilitarian, on the other hand, insists that punishment can be justified only if it has beneficent consequences that outweigh the intrinsic evil of inflicting suffering on human beings.

retributivist theories

The most thoroughgoing retributivists, exemplified by Immanuel Kant, maintain that the punishment of crime is right in itself, that it is fitting that the guilty should suffer, and that justice, or the moral order, requires the institution of punishment. This, however, is not to justify punishment but, rather, to deny that it needs any justification. To say that something is right or good in itself means that it does not need to be justified in terms of the value or rightness of anything else. Its intrinsic value is appreciated immediately or intuitively. But since at least some people do doubt that punishment is right, an appeal to intuition is necessarily unsatisfactory. Again, to say "it is fitting" or "justice demands" that the guilty should suffer is only to reaffirm that punishment is right, not to give grounds for thinking so.

Some retributivists, while admitting that punishment is, prima facie, evil, maintain that it is nevertheless better that the wicked should be punished than that they should prosper more than the virtuous and, perhaps, at their expense. In this view, the function of criminal law is to punish wickedness or immorality in order to maintain a kind of cosmic distributive justice. However, it is not self-evident that wickedness should be punished any more than it is self-evident that legal guilt should be. Archbishop Temple, himself a retributivist, declared that he had no "intuition that it is good that the wicked should suffer." Nor is it clear that virtue must be rewarded or that universal justice requires the kind of human rectification that this sort of retributivism envisages. Of course, in a universe in which the wicked prospered, there might be no incentive to virtue, but this is essentially a utilitarian mode of argument. Again, evil motives and a bad character are necessary conditions of wickedness but not of legal guilt and criminal liability. The state's function is to punish breaches of those rules which in the public interest ought to be upheld; it is a matter of indifference in law (but not in morals) that some men who observe the rules do so from the unworthy motive of fear and others break them from laudable motives of principle. Conversely, it is at least doubtful whether the criminal law should provide penalties for offenses against morality except where the public interest is at stake—for example, whether it should extend to cases of lying other than, say, false pretenses and perjury.

Though immorality is neither a necessary nor a sufficient condition for punishment, the relation between law and morals is nevertheless a close one, and what punishment is to the one, blame is to the other. Both regulate social intercourse, and in any given society the aims and ideals upheld by the law will usually correspond, more or less, with those upheld by the dominant morality. Moreover, in the family and the school punishment is often used to reinforce moral condemnation as part of the process of moral education. Some writers who regard punishment as moral retribution couple this idea with the argument that the point of punishment is to be found in what Lord Justice Denning has called "the emphatic denunciation by the community of a crime." In this view, punishment reinforces the community's respect for its legal and moral standards, which criminal acts would tend to undermine if they were not solemnly denounced. There is, however, no intrinsic reason why denunciation should take precisely the form of inflicting suffering on criminals, unless, perhaps, one accepts Ewing's view that punishment has the advantage of impressing both on the criminal and on everyone else that a breach of law and morals is so serious that society must do something to prevent it. That, however, is surely to justify punishment by its utility in maintaining respect for the law. Hastings Rashdall refers to "the enormous importance of the criminal law in promoting the moral education of the public mind," but Rashdall was a utilitarian who justified punishment by reference to "the production of good effects on conscious beings."

For G. W. F. Hegel punishment is necessary to annul the wrong done by the criminal. By this he means something more than restitution or compensation, neither of which is, strictly speaking, punishment. It is, rather, that the criminal has upset the balance of the moral order, which can be restored only by his being made to suffer. Or, in terms of the dialectic, crime is a negation of right and as such a nullity; punishment negates the negation, thus reaffirming the right. But in what sense can punishment be said to restore the balance or annul the wrong, unless it is taken for granted that criminals deserve to be punished? This is precisely the point in question.

utilitarian theories

The utilitarian position is exemplified in Jeremy Bentham's remark that "all punishment is a mischief.… If it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil." By reforming the criminal, by deterring him or others from similar offenses in the future, or by directly preventing further offenses by imprisonment, deportation, or execution, the good that comes out of punishment may outweigh (so the utilitarian argues) the intrinsic evil of suffering deliberately inflicted. Without such effects, or if the suffering inflicted exceeded the suffering avoided, the institution would be unjustified.

The critics of utilitarianism claim that if people generally could be persuaded that an innocent man was guilty, utilitarianism would justify punishing him since as a warning to others he would be just as useful as a genuine offender. Again, offenders might be deterred by threatening to punish their wives and children, particularly, if as is so often the case with political terrorists and resistance fighters, it were difficult to catch the offenders themselves. Or, again, if punishment could be justified as a way of reforming criminals, it would seem better to punish them before, rather than after, they committed their crimes. Retributivists claim that utilitarians are in danger of losing sight of two conditions that are necessary to the very idea of punishment—namely, that an offense should have been committed and that punishment shall be of the offender himself, who alone can be said to deserve it. "Punishment is punishment," wrote F. H. Bradley, "only when it is deserved"; punishment for any other reason is "a crying injustice."

The dilemma of utilitarianism, then, at least in its crude form, is that it justifies punishing innocent people provided that such punishment causes less suffering than might otherwise be caused by the would-be criminals it deters. Some utilitarians argue that in the end the deception would break down, that it could not be used systematically, or that the long-term consequences would be bad for society. But these answers are unsatisfactory because they depend on assumptions of purely contingent consequences. Our revulsion against punishing innocent people seems to go deeper than that. In any case, these answers will not meet the case for punishing hostages, which can certainly be done systematically and requires no deception or secrecy.

punishment and principles of justice

To meet the above criticisms, a crude utilitarianism would have to be supplemented by other moral principles—namely, that differences in treatment must be justified by relevant differences in circumstance or condition, where "relevance" is defined in the light of general rules, and that every human being should be treated with at least a minimum of respect as a source of claims and not as a mere instrument for the promotion of the interests of others. It can be argued that punishment of the innocent or of hostages is an abuse not because it necessarily makes for more unhappiness than it prevents but because it treats innocent men in a way that is appropriate only for the guilty and makes an arbitrary difference in treatment between them and other innocent men. Moreover, a legal system is designed to guide conduct by laying down rules and attaching penalties to those who choose to break them. It is acceptable, in the words of J. D. Mabbott, only because "the criminal makes the essential choice; he 'brings it on himself.'" Otherwise, punishment would not be consistent with the principle of respect for persons. The hostage, on the other hand, has no chance to settle his own fate; he is used as a mere lever for manipulating other people's conduct, and his own interest is subordinate to that of the other members of society. Punishment of the innocent ignores, in short, fundamental procedural rules of justice and morality without which utilitarianism would make little sense, for unless everyone is worthy of equal consideration as a source of claims, whose interest is to count in assessing the utility of a course of action? Whom are we entitled to treat as simply a tool for advancing other men's interests—as Aristotle's "slave by nature"—and what would count as a reason for considering other men before him?

This has bearing, too, on the reasons for accepting as excuses such defenses as duress, unavoidable accident, or ignorance of fact—conditions under which an offender can claim that he could not help doing what he did. Bentham argued that to punish anyone under such conditions would be pointless and, therefore, mischievous, because the threat of penalties could not possibly deter anyone in the future who was similarly placed. Now, it is true that nothing would be lost if such people escaped punishment, provided they could be distinguished from cheats trying to take advantage of such excuses and provided enough offenders without such excuses could be detected to furnish examples for others. The principle of "strict liability," which exists in some legal systems for certain offenses, has been defended on the utilitarian ground that it is impossible to tell a genuine excuse from a pretense. It is questionable, however, whether a person who would otherwise be treated as innocent ought to be treated as guilty because someone else might otherwise escape a merited penalty. Punishing the man who commits an offense through ignorance or accident, because it is too difficult to tell whether he really did it on purpose or because we have to make an example of someone, is very like punishing the innocent as a warning to the guilty. The utilitarian case for these excuses is unsatisfactory inasmuch as it makes them subject to such qualifications.

A better ground for such excuses is that punishment is morally acceptable only if it is the consequence of an act freely chosen by the criminal, which it would not be under these conditions. A man acting in ignorance or by accident cannot be said to bring his punishment on himself. Punishment, seen as a way of influencing conduct, cannot be justified if there has been no real possibility of choice. Moreover, the punishment of involuntary offenses introduces into men's lives the possibility of disasters that they can neither foresee nor avert.

Utilitarianism, then, must be supplemented by principles of justice if it is not to clash with other moral principles that are usually considered fundamental. It has, however, the merit, as an approach to the justification of punishment, that it provides a clear procedure for determining whether the institution is acceptable in general terms. This the retributivist approach cannot do because it denies the relevance of weighing advantages and disadvantages, which is what we ultimately must do in moral criticism of rules and institutions. Consequently, a retributivist justification of punishment as an institution usually turns out to be a denial of the necessity for justification, a veiled reference to the beneficial results of punishment (a utilitarianism in disguise), or an appeal to religious authority.

When it is a question of justifying a particular case of punishment, however, the retributivist is in a far stronger position. There would be no point in having a general rule if on every occasion that it had to be applied one had to consider whether the advantages in this particular case warranted acting in accordance with it. Moreover, the point of punishment as deterrent would be quite lost were there no general expectation, based on the general operation of the rule, that the guilty would be punished. Assuming, then, that a penal system can be justified in utilitarian terms, any offense is at least prima facie an occasion for a penalty. Equally, without an offense there is no question of a penalty. The retributivist contention that punishment is justified if, and only if, it is deserved is really applicable, therefore, to the justification of particular instances of punishment, the institution as such being taken for granted.

Severity of Punishment

The clash between the utilitarian and retributivist approaches to punishment also arises in considering the criteria by which appropriate punishments are assessed. The retributivist insists that the punishment must fit the crime; the utilitarian relates the penalty to the general aims of the system, to the prevention of further crime, and, perhaps, to the reform of the criminal.

The most extreme form of retributivism is the law of retaliation: "an eye for an eye." This alone, Kant claimed, could provide a just measure of the penalty, since it was the crime itself and nothing else that settled it. However, to try to apply it literally might be monstrously cruel, or, as Kant recognized, it might be absurd. Thieves can be deprived of their property and murderers hanged, but what penalty is appropriate to the dope-peddler, the blackmailer, and the smuggler?

There is not much sense, either, in trying to construct a table of equivalents so that the amount of suffering inflicted by the criminal could be meted out to him in some other form. How can such a table be drawn up? How many years must a blackmailer spend in jail to experience suffering equal to his victim's? Is it possible, in any case, to make comparisons of suffering between persons? Of course, we do assess the gravity of an offense and try to ensure that the punishment for a trivial offense is less severe than for a serious one. But this is possible only because we take for granted an existing scale of penalties and grade new offenses accordingly. Such grading does not imply an intrinsic relation between the crime and the penalty apart from that established by the scale. Some retributivists admit this but claim nevertheless that the penalties prescribed by the law ought to reflect the moral heinousness of the offense. The most serious offenses against morals deserve the most severe penalties. This, however, only shifts the question a step back, for what makes one moral offense more serious than another?

Utilitarians have tended to concentrate on deterrence, turning away from the actual criminal act except as one of a class of actions that might be prevented by punishing the particular instance severely enough (but only just enough) to make the action unattractive to the offender and to possible future offenders. Unfortunately, there are always people who cannot be deterred or reformed. Beyond a certain point the additional suffering one would have to inflict on all offenders to reduce their number might be so great as to exceed the amount of suffering thereby averted. The aim of the utilitarian, then, would presumably be to select the penalty at which the aggregate of suffering caused by crimes actually committed and punishments actually inflicted would be the smallest possible.

The utilitarian approach has often been criticized as justifying severe penalties for trivial offenses and vice versa. To eliminate parking offenses might need heavier penalties then to eliminate blackmail, which would be monstrous. But this criticism misses the point of the utilitarian case. There would, indeed, be no objection to threatening the severest penalty for any offense providing the threat never had to be carried out. Punishment is only an unfortunate consequence of the fact that the threats, which are the true operative elements in the system, are partially ineffective and would be wholly ineffective if they were not carried out when they failed to deter. In fixing penalties, the utilitarian's problem is not, therefore, to minimize the number of offenses, irrespective of the punishment inflicted, but to minimize the total amount of suffering from both sources. If we call parking offenses trivial, we mean that each one causes relatively little suffering; therefore, we are prepared to put up with a large number of them rather than incur the cost of making offenders suffer heavy penalties. Blackmail, on the other hand, causes so much suffering that if heavier penalties would yield even a small reduction in the number of offenses, there might be a net gain even though offenders would suffer more than they did before. In this way a utilitarian might agree with the retributivist that severe penalties ought to be restricted to serious offenses, but he would argue that we call an offense serious precisely because it causes a great deal of suffering. For the retributivist only serious crimes deserve severe penalties; for the utilitarian only serious crimes are worth averting at the cost of severe penalties.

The utilitarian approach to this matter does not supply a procedure for sentencing particular criminals (any more than a justification for punishment as an institution would be a case for any particular application of it). Arguing from expected consequences, one might establish a kind of standard penalty for each class of offense. Officials drafting new rules might consider whether a proposed maximum penalty would keep offenses down to manageable proportions, or people concerned about road accidents might argue that heavier penalties for motoring offenses would make drivers more careful. Deciding the sentence in a particular case, however, is clearly a different matter. The maximum penalty is a limiting factor, but questions like the degree of responsibility, provocation, and the offender's previous record are all relevant. However, one might reasonably ask why, as a matter of principle, they should be relevant.

Punishment and Responsibility

The problem of responsibility arises in relation to punishment as it does in relation to blame in moral theory. The principle, discussed already, that a man ought not to be punished for doing what he cannot help creates difficulties when extended to actions which a man could not help doing because of his own state of mind instead of external or contingent factors, like duress or ignorance of fact. An insane man, as defined, say, by the M'Naghten rules (that is, one who did not know what he was doing or did not know that what he was doing was wrong), cannot be said to choose his act because he cannot know it for what it is. But sometimes a man may know that what he is doing is wrong yet still be unable to stop himself from doing it. He may be subject, for instance, to an irresistible temptation or provocation. But how is that to be understood? A temptation is not irresistible merely because a particular man has yielded to it or even because he might have been expected to yield to it. However, a temptation may be so strong that we might expect any ordinary person to yield to it (even though a few people may in fact resist it), or, as one might say, it might be "more than human nature can stand." In that sense it may be "irresistible."

Some people, of course, find it much more difficult than others to resist temptation. Some, like kleptomaniacs, are "impelled" to act in the sense that deliberation neither plays, nor could play, any part in what they do. Such people might be distinguished from plain wrongdoers by the fact that nothing—not blame, punishment, praise, or rational argument—seems to affect their disposition to break the rules. Or, again, their actions may lack any point, or if they can be said to have any point, it is only in relation to a set of aims and standards of achievement so distorted and eccentric that they are intelligible only to a psychiatrist. The kleptomaniac who steals nylon stockings for which he has no possible use (according to ordinary standards of utility) might properly be said to be unable to help stealing them. Far more difficult is the case of the psychopath, who seems to have no wish to resist temptation or, rather, who knows that some of the things he wants to do are wrong in the sense that other people disapprove of them but on whom this knowledge enforces no internal restraint beyond prompting a degree of caution. Criminals of this type would once have been described as "wicked" but are now often described as incapable of self-control. To say, however, that they are not responsible for their acts creates the odd situation that anyone is liable to punishment who usually resists temptation but sometimes fails, whereas the man who never resists is not liable at all.

The determinist has a short way with these difficulties. Since everyone's actions are the response of his character to a given set of circumstances, how can anyone ever be held responsible for his actions? We do what we must, given what we are, and what we are is the end of a causal chain going back to before we were born. If one knew a person well enough, one might predict that under given conditions he would commit a crime. Is this compatible with saying that he can choose whether to do so, or is his belief in his freedom to choose simply an illusion? Can the result of a genuine choice be predicted?

To say that something is predictable is not, however, the same as saying it is unavoidable. We can forecast a man's actions just because we know the kind of choices that he regularly makes. The more we know of his dispositions and his preferences, the more likely we are to be right. But that does not mean that he never acts voluntarily or that he never makes a real choice but only thinks he does. If all choices are illusions, what would a real choice be like? A man's behavior may be predictable because he can be relied upon to do what is reasonable, but to act with good reason is the very reverse of being subject to an inner compulsion. An essential difference between voluntary and involuntary action is that it makes sense to speak of the motives, aims, and reasons for the former but only of the causes of the latter. It is only when a person's behavior seems pointless or when explanations in terms of aims do not seem sufficient that we look for the kind of cause which would justify saying that he could not help himself. Of course, a complete account of voluntary and rational behavior must refer to causes as necessary conditions for action, but such causes would not constitute a sufficient explanation. An account of the electronic activity in the brain would not provide a sufficient explanation of a move in a game of chess unless the move was so completely and absurdly irrelevant that it had to be accounted for simply as the result of a nervous twitch. In that case, however, it would not really be a move in the game at all, not an action, indeed, but something that happens to the player. The weakness of the determinist position, insofar as it purports to undermine the notion of responsibility, is that it treats such abnormalities as the explanatory model for the normal.

It is arguable, in any case, that the concept of responsibility requires that human behavior be causally accountable rather than the reverse. As David Hume pointed out in An Enquiry concerning Human Understanding,

[Where actions] proceed not from some cause in the character and disposition of the person who performed them, they can neither redound to his honour, if good; nor infamy, if evil. … The person is not answerable for them; and as they proceeded from nothing in him that is durable and constant, and leave nothing of that nature behind them, it is impossible [that] he can, upon their account, become the object of punishment or vengeance.

In Hume's view universal causality is consistent with the concept of choice and is a necessary condition for responsibility and, therefore, for blame and punishment.

Strictly speaking, all that is necessary for a theory of punishment is that human conduct should be capable of being modified by threats. For some people—for instance, compulsive lawbreakers like kleptomaniacs—that is not the case. Others, however, commit crimes believing they can escape punishment; still others, in a spirit of rebellion, indifference, or, more rarely, of martyrdom, prefer to do what they want and risk the consequences rather than conform. Why they prefer it—what conditions account for their being the men they are—is irrelevant. To say "they prefer it" is to say they might have chosen to do otherwise but did not, and that is all that is necessary for the concept "responsibility." To ask whether they were free to prefer otherwise, being what they were, is to ask whether they could choose to choose, and it is not clear that this really means anything. The experience of punishment may provide a reason for choosing differently next time, but to have a reason for choosing is not to be without a choice and, therefore, without responsibility.

extenuation

Though a criminal may be held responsible for his actions, there may nevertheless be circumstances which, so it is said, diminish responsibility or extenuate guilt. Temptation or provocation, though not irresistible may have been very great. The offender may have had a good character, and there may be no reason to expect any future lapse.

In some cases mitigation of sentence on such grounds can be readily justified in utilitarian terms. Little is to be gained by punishing the obviously exceptional lapse; a very small penalty might be enough to dissuade other respectable people who might otherwise be tempted to imitate it and for whom the shame of being treated as a criminal, whatever the penalty, is usually deterrent enough.

However, it is not easy to show, at least in utilitarian terms, that mitigation is reasonable in all the instances in which it is commonly thought appropriate. Nor does everyone agree on what are extenuating circumstances. It is not self-evident that whoever is sorely (but not irresistibly) tempted should be treated more leniently than people who have done the same thing but under less temptation. A strong temptation might be withstood if there were sufficient counterinducement. Leniency might weaken the resolve of others in the future. Some people treat crimes of passion leniently; others would say that the temptation is so commonly felt that if people were not discouraged from taking the law into their own hands by treating offenses of this kind severely, such offenses would rapidly multiply. Again, some people would accept a plea of drunkenness as an extenuation of an offense, whereas others would consider it an aggravation.

It is doubtful whether our ideas on this aspect of punishment depend on utilitarian considerations. Nor is there any reason to suppose that any system of utilitarian argument could show them to be consistent and rational. It was suggested earlier that though the criteria of morality and law, of blame and punishment, are not identical, they influence one another. If we blame people less for yielding to strong temptation, we also feel they deserve a less severe punishment. But this only shifts the question a step back. Why should temptation mitigate blame?

A possible answer might be that at least some temptations can be pleaded as partial justifications. Thus, a man who pleads that he killed someone to shorten his sufferings or a woman who kills her deformed baby is appealing to another moral principle to excuse the act. Similarly, a man who kills his wife's lover might claim that his victim was violating his rights. These are not complete justifications, as a plea of self-defense would be, but they are excuses that count, as it were, against the initial presumption of guilt and so incline us to look at the offense more sympathetically and more leniently, whatever the advantages of severity in terms of deterrence, prevention, or reform. There is nothing irrational in striking a balance of desert.

But differences of opinion about a criminal's deserts often turn not on the way such a balance is struck but on the extent to which his judges (or their critics) are able to comprehend his action. Anyone who could imagine himself tempted in similar circumstances would probably be more sympathetic than someone who could not and who would therefore see no reason for being indulgent. On the other hand, anyone who suspected that he himself might yield to such a temptation and who flinched from the possibility might react to it with very great severity indeed.

Punishment and Reform

There is no reason to suppose, then, that the sentencing practice of the courts will display rational and consistent principles; furthermore, any attempt to set up criteria of rational judgment on strictly utilitarian principles is likely to cut across deeply rooted moral convictions. Accordingly, some criminologists and psychiatrists, such as Eliot Slater and Bernard Glueck, and some penal reformers, such as Barbara Wootton, have swung away from the general conceptions of punishment and desert. Instead of asking what penalty is warranted by the crime, whether the agent was fully responsible for his action, whether circumstances exonerate him wholly or in part, they prefer to ask what kind of treatment is most likely to rehabilitate him, subject, of course, to the example it might set for others.

This comes very close to repudiating altogether the concept of punishment as a deliberate infliction of suffering, which the criminal deserves, consequent to a voluntary breach of the law. First, the treatment most likely to rehabilitate him need not be unpleasant (though if it is to instill a measure of discipline, it very well may be). And, second, avoiding the question of moral responsibility, the reformer also avoids the question of what the criminal deserves, because the reformer's prime concern is with the treatment he needs. Criminals would no more deserve punishment than the sick deserve medicine. Indeed, for such writers as Samuel Butler and the American lawyer Clarence Darrow, criminality is a kind of sickness to be treated rather than a wrong to be punished.

Attractive as this approach may seem on humanitarian grounds, it has at least one serious consequence. The concepts of responsibility and desert cannot be discarded without some loss. For it is not a necessary condition of medical treatment that a patient must have shown symptoms of a disease; those exposed to smallpox are vaccinated before they develop a fever. Without the principle that punishment must be deserved, there would be no obstacle to subjecting people likely to become criminals to corresponding forms of penal prophylaxis. Moreover, if we substitute for punishment the idea of rehabilitative treatment, there is nothing against sentencing a person of bad character to a severe course of treatment for the most trivial offense if his character would be better for it in the end. This would clearly be incompatible with the usually accepted principle that trivial offenses should not carry severe penalties.

Reformism of this kind is open to attack from another quarter. The point has been made by Hegel and Bernard Bosanquet, among others, that retributive punishment is a kind of tribute to the moral personality of the criminal. It is precisely as a morally responsible agent, recognized as capable of making reasoned choices and accepting the consequences, that the criminal is punishable. Bosanquet goes so far as to say that punishment is "his right, of which he must not be defrauded." It is to be distinguished, argued Bradley, from the discipline or correction appropriately administered to animals and children. Punishment "is inflicted because of wrongdoing, as desert, the latter is applied as means of improvement." Since rational adults are neither animals nor children, no one has the right to treat them as if they were. It might be similarly argued that lunatics are under tutelage because they are incapable of looking after their own interests and cannot be expected to respect those of other people. The sane criminal, on the contrary, can be made to pay for his antisocial choices in order to demonstrate to him and, through him, to others that crime does not pay, but it diminishes his stature as a rational adult to deny that he is responsible for ordering his own life and to impose upon him ends of another person's choosing.

Nevertheless, retributivists have often been much concerned with moral reformation. They have insisted, however, that this was something the criminal must do for himself. Because it was associated with shame and rejection, punishment could bring the criminal up short and force him to reconsider his life in the light of society's condemnation of his actions. But the remorse that was a necessary condition for self-reformation was entirely dependent on the criminal's recognition that his punishment was deserved. Without that there could be no inward reformation, no reassertion of moral standards, but only a sense of resentment and injustice. Accordingly, punishment can yield the benefits of reform only if it is thought of, above everything else, as retributive—as the appropriate desert of a responsible guilty agent. It is this which distinguishes the retributive approach to moral reformation from the kind of utilitarianism which turns its back on desert and responsibility and is concerned only with the needs of rehabilitation.

It is, of course, an open question whether punishment ever does produce the kind of self-reformation the Hegelians had in mind or whether it does so more often than it produces a moral decay. Indeed, our knowledge of the facts of criminal behavior is probably far too scanty and uncertain for us to know how relevant much of the philosophical discussion of punishment really is. We cannot say for sure that a penal system is justified because it tends to reform criminals. Nor do we know, for that matter, whether the deterrent view of punishment is applicable to all kinds of crime. Many people commit offenses without seeming to take any account of consequences before they act, and they repeat the same offenses again and again in spite of punishment. Perhaps those who do not, would not repeat them even without punishment. Perhaps there would be no more cases of certain classes of crime than there are already; perhaps the only people to commit them are those who also do not take account of consequences before they act. It seems likely that some potential offenders are deterred from evading taxes or from smuggling by the threat of punishment, but is there any certain evidence that the threat of punishment deters anyone who would otherwise commit rape or arson?

Utilitarians tend to assume that punishment as an institution can be justified by its beneficial consequences, but the argument depends on certain a priori assumptions about criminal (or would-be criminal) behavior that may be greatly overintellectualized. However, even though research should prove the usual utilitarian justifications for punishment groundless, that does not mean that some other, nonutilitarian justification is better. The proper procedure may well be to ask, with the utilitarian, whether the consequences are by and large beneficial; it is equally possible that punishment as an institution might fail that test. A theory of punishment that led to the conclusion that all punishment was wrong need be no more necessarily mistaken than a theory that led to a similar conclusion as regards, say, slavery, which, after all, was accepted as uncritically in Aristotle's day as punishment is today.

See also Aristotle; Bosanquet, Bernard; Bradley, Francis Herbert; Butler, Samuel; Good, The; Hegel, Georg Wilhelm Friedrich; Hume, David; Kant, Immanuel; Moral Rules and Principles; Rashdall, Hastings; Responsibility, Moral and Legal; Utilitarianism.

Bibliography

For a broad treatment of the subject, see A. C. Ewing, The Morality of Punishment (London: K. Paul, Trench, Trubner, 1929). For classic expositions of retributive positions, see Immanuel Kant, "Metaphysische Anfangsgründe der Rechtslehre," in Die Metaphysik der Sitten (1797), in Werke, Vol. VII (Berlin, 1922), translated by W. Hastie as Kant's Philosophy of Law (Edinburgh, 1887); G. W. F. Hegel, Philosophie des Rechts (1821), in Werke, Vol. VIII (Berlin, 1833), translated by T. M. Knox as Hegel's Philosophy of Right (Oxford: Clarendon, 1942). See also Ch. 8 of Bernard Bosanquet, Philosophical Theory of the State (London, 1899; 4th ed., Macmillan, 1923), and Essay 1 of F. H. Bradley, Ethical Studies (London, 1876; 2nd ed., rev., Oxford: Oxford University Press, 1927). Extensive bibliographic notes can be found in Giorgio Del Vecchio, La giustizia, which was originally published in Annuario dell'Università di Roma (1922–1923), 4th ed. (Rome, 1951), translated by Lady Guthrie as Justice, edited by A. H. Campbell (Edinburgh, 1952).

More recent analyses, mainly in retributive terms, can be found in J. D. Mabbott, "Punishment," in Mind 48 (1939): 152–167; C. W. K. Mundle, "Punishment and Desert," in Philosophical Quarterly 4 (16) (1954): 216–228; D. C. Hodges, "Punishment," in Philosophy and Phenomenological Research 18 (2) (1957–1958): 209 (a case for viewing punishment as reparation). K. Baier, "Is Punishment Retributive?," in Analysis 16 (2) (1955): 25–32, argues that the concept of punishment entails retribution but does not deal with problems of justification. See also A. R. Manser, "It Serves You Right," in Philosophy 37 (142) (1962): 293–306. H. J. McCloskey, "The Complexity of the Concepts of Punishment," ibid., 307–326, draws attention to variety of contexts in which "punishment" is used and argues against analysis in terms of a standard case.

For classic statements of utilitarian positions, see C. B. Beccaria, Dei delitti e delle pene (1764); An Essay on Crimes and Punishment, Translated from the Italian, 4th ed. (London, 1785); Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1789), Wilfrid Harrison, ed. (Oxford, 1948), and Traités de législation, civile et pénale, E. Dumont, ed. (Paris, 1802), translated by R. Hildreth as Theory of Legislation, C. K. Ogden, ed. (London, 1931). See T. H. Green, Lectures on the Principles of Political Obligation, in Works, edited by R. L. Nettleship, Vol. II (London, 1885), or in a separate edition, with an introduction by A. D. Lindsay (London: Longman, 1941); Green repudiates retributivism but stresses moral reformation as a function of punishment and, therefore, the importance of the concept of desert (cf. Bosanquet, op. cit.). See also Vol. I of Hastings Rashdall, Theory of Good and Evil, 2 vols. (Oxford: Clarendon Press, 1907; 2nd ed., 1924).

The following examples of recent analyses of the problems of punishment are mainly utilitarian in emphasis but try to allow some place for retributivism in a general theory. In W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), especially Appendix II, Ross argues that the state is entitled to punish offenders in the public interest because by invading the rights of others, they forfeit their own claim to protection. On this subject see also A. G. N. Flew, "The Justification of Punishment," in Philosophy 29 (3) (1954): 291–307; H. L. A. Hart, "Prolegomenon to the Principles of Punishment," in PAS 60 (1959–1960): 1, and "Murder and the Principles of Punishment: England and the United States," in Northwestern University Law Review 52 (4) (1957): 433. Also, see A. Quinton, "On Punishment," and Stanley I. Benn, "An Approach to the Problems of Punishment," in Freedom and Responsibility, edited by Herbert Morris (Stanford, CA: Stanford University Press, 1961); J. Rawls, "Two Concepts of Rules," in Society, Law, and Morality, edited by F. A. Olafson (Englewood Cliffs, NJ: Prentice-Hall, 1961); Stanley I. Benn and R. S. Peters, Social Principles and the Democratic State (London: Allen and Unwin, 1959), especially Chs. 8–9. Patrick J. Fitzgerald, Criminal Law and Punishment (Oxford: Clarendon Press, 1962), deals with the philosophical problems in the broad context of English criminal law. For a discussion of the relations of law, morality, and punishment, see Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965), and H. L. A. Hart, Law, Liberty and Morality (Stanford, CA: Stanford University Press, 1963).

For discussions of free will, determinism, and responsibility in relation to punishment, see H. L. A. Hart, Paul Edwards, and John Hospers, symposium on "Determinism and Freedom in Law and Ethics," in Determinism and Freedom, edited by Sidney Hook (New York: New York University Press, 1958); J. D. Mabbott, "Freewill and Punishment," in Contemporary British Philosophy, edited by H. D. Lewis, 3r series (London, 1956). In Barbara Wootton, Social Science and Social Pathology (London: Allen and Unwin, 1959), there is a survey of recent trends in psychiatric and criminological studies critical of the concept "responsibility"; see especially Ch. 8. For a criticism of these trends, see H. L. A. Hart, Punishment and the Elimination of Responsibility (Oxford: Clarendon Press, 1968). Freedom and Responsibility (see above) is a useful collection of readings on various aspects of the problem of responsibility, including its relation to punishment, extenuation, and so on; it includes an extensive bibliography.

Stanley I. Benn (1967)