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H.L.A. Hart and the Justification of Punishment

Published online by Cambridge University Press:  09 June 2015

Wesley Cragg
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Extract

Historically, discussions of the morality of punishment have been dominated by the conviction that punishment is an inescapable feature of social life. Thus it is widely believed that laws will not be respected unless those who break them are punished. Yet another view deeply entrenched is that avoiding or mitigating pain and suffering ought to be a fundamental goal of civilized societies. These two convictions are in obvious tension. Punishment requires the deliberated infliction of pain or suffering. How then can it be justified?

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 5 , Issue 1: Reflections on Sentencing and Corrections , January 1992 , pp. 43 - 55
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1992

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References

1. These words are used by Fattah, Ezzat in “Is Capital Punishment a Unique Deterrent” in Cragg, Wesley ed., Contemporary Moral Issues, 2d ed. (Toronto: McGraw/Hill Ryerson, at 145.Google Scholar

2. For a systematic discussion of the case against forward-looking sentencing, see my discussion in Cragg, Wesley, The Practice of Punishment: Toward a Theory of Restorative Justice (London: Routledge, 1992) at 30–57.CrossRefGoogle Scholar

3. See for example Kant’s conclusion that: even if civil society resolved to dissolve itself with the consent of all its members, the last murderer lying in prison ought to be executed before the resolution was carried out. This ought to be done in order that everyone may realize the desert of his deeds.... From The Philosophy of Law. [Reprinted in Ezorsky, Gertrude, ed., Philosophical Perspectives on Punishment (Albany: State University of New York Press, 1972) at 105.]Google Scholar

4. Hart, H.L.A., Punishment and Responsibility (Oxford: Clarendon Press, 1968) at 3. [Hereinafter cited in the text and in notes as Hart 1968: with page number.]Google Scholar

5. Burgess, Anthony’ novel A Clockwork Orange, first published in 1962, illustrates this point well.Google Scholar

6. There are hints here and there in the text that point in this direction. For example, Hart says in the course of a discussion of capital punishment: Some punishments are ruled out as too barbarous or horrible to be used whatever their social utility; we also limit punishments in order to maintain a scale for different offences which reflects, albeit very roughly, the distinction felt between the moral gravity of these offences. Thus we make some approximation to the ideal of justice by treating morally like cases alike and morally different ones differently. (Hart 1968: 80) This passage, however, is also consistent with the view that the amount of punishment inflicted should be determined by utilitarian considerations, with retributive principles operating as side constraints, as Mark Thornton has pointed out to me in discussion of this point.

7. Lacey, Nicola makes this point in State Punishment (London: Routledge, 1988) at 46–52.]Google Scholar

8. If there never was any conflict, the two approaches would be perfectly complementary and there would be no need to choose between them. The challenge for a hybrid theory is to propose modifications to each that bring them into substantial harmony in determining sentences for particular offences.

9. For example, Hart comments that “fairness between different offenders expressed in terms of different punishments is not an end in itself but a method of pursuing other aims which has a moral claim on our attention....” Hart 1968: 172. However, the appropriate interpretation of this passage would seem to be simply that Hart views fairness as a value which should be respected, except where it collides too vigorously with utilitarian considerations.

10. For example, see his discussion of Bentham’s justification for retaining the notion of responsibility in determining guilt. Hart 1968: 19-21.

11. He makes these points in his discussion of Bentham’s arguments in this regard, which is referred to in the previous note.

12. See Hart 1968: 25.

13. Jerome Bickenbach reaches this conclusion in his critical notice of R. A. Duff’s book Trials and Punishments, Bickenbach, J., Critical Notice (1988) 18 Can. J. of Phil. 765.Google Scholar

14. In a recent Nordic Conference of the International Association for Philosophy of Law and Social Philosophy hosted by the Canadian Section, Mark Thornton and Gene Dais argued at length that combining retributive and utilitarian principles into a coherent theory of sentencing was indeed possible. Their approach to this task is set out in contributions to the proceedings of that conference, see Cragg, Wesley, ed., Retributivism and its Critics (Stuttgart: Franz Steiner Verlag, 1992).Google Scholar It is my view, however, that no defence of a hybrid theory of the sort that Hart defends can be evaluated in the absence of a relatively detailed description of how it would work in a sentencing context. Since neither undertakes this task, what they are actually advocating is fundamentally ambiguous, as indeed is Hart’s own account, as this discussion shows.

15. This view is implied by passages from essays collected in Hart 1968: “Prolegomenon to the Principles of Punishment” at 22, in “Murder and the Principles of Punishment” at 80-81, and in “Punishment and the Elimination of Responsibility” at 183.

16. Again see discussion in Hart 1968: 183.

17. Hart implies this view in a number of places. See particularly Hart 1968: 22.

18. See Hart 1968: 172. It should be noted, what I think is in any case obvious, that these four propositions are a compilation taken from different discussions. The resulting interpretation is an attempt to construct a consistent answer to the question: ‘how should the amount of punishment to be inflicted on offenders for their offences be determined?’

19. Both Mark Thornton and Brenda Baker in private correspondence have suggested reasons for thinking that it is not. Their arguments are in many respects persuasive though there is imposing evidence to support the opposing case as well, as the footnotes to each of the four steps outlined above suggest. For the purposes of this discussion, it is not central to my argument that this third interpretation is the correct one. My argument is simply that it is a plausible interpretation, one that has been vetted in the literature and one that deserves scrutiny.

20. In preparing its recommendations on sentencing, the Canadian Sentencing Commission commissioned a thorough review of the available research on the deterrence effect of punishment. They concluded that it was virtually impossible to justify punishment in particular cases by reference to its value as a deterrent. They did concede, however, that the fact of punishment did have some residual value as a general deterrent. See the report Sentencing Reform: A Canadian Approach of the Canadian Sentencing Commission (Ottawa: Ministry of Supply and Services, 1987).Google Scholar

21. For a thorough discussion of the literature in this regard see the second chapter of my book, supra, note 2, entitled “The Point of Punishment—Forward-looking Accounts”.

22. See, for example, von Hirsch, Andrew, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976).Google Scholar

23. He makes this clear in Punishment and Responsibility, see Hart 1968: 27. As previous discussion shows, there are good reasons for doubting that this view is in fact well grounded—a conclusion that will be strengthened as the argument progresses.

24. Though I do not propose to argue the point here, Hart rests his view of law and the nature of legal obligation on a modified form of legal positivism. His defence of that view is set out in The Concept of Law (Oxford: Oxford University Press, 1961).Google ScholarPubMed

25. I discuss this point at more length in my “Law, Violence, and the Limits of Morality” (1989) 8 Law and Philosophy 301.Google Scholar

26. Teleological retributivism differs from the approach examined in this essay by starting from the position that the general aim of punishment is a retributive one. Its strategy is to seek to incorporate forward-looking values into what is essentially a backward-looking justification. A recent interesting example of this kind of argument is offered by Duff, R.A. in Trials and Punishments (Cambridge: Cambridge University Press, 1986).Google ScholarIn his Critical Notice, Bickenbach supra, note 13, concludes that, while the account offered by Duff is of substantial philosophical interest, it does not succeed in the task it sets itself.

27. This is something I explore in The Practice of Punishment; Towards a Theory of Restorative Justice, supra, note 2, where I argue that while punishment is indeed an unavoidable concomitant of criminal justice, it is a mistake to think that infliction of punishment is an appropriate purpose of sentencing or corrections. Rather, the goal of both activities ought to be restorative not punitive. Why this is so is set out at length in the last five chapters of the book. The present paper combines ideas set out at greater length in the book, particularly in chapters two and three.