No CrossRef data available.
Article contents
Justice and Legal Punishment1
Published online by Cambridge University Press: 25 February 2009
Extract
The Question of punishment and its justification has been a major preoccupation in recent philosophy of law. The reasons for this growing concern are not difficult to discover. Both philosophers and jurists have become increasingly sceptical of traditional theories of legal punishment. Each of these inherited theories was designed to establish criteria for the recognition and appraisal of punishment as a legal institution. However, alternative theories emphasised different and often conflicting criteria. Some theories emphasised moral desert and retribution, while others appealed to the social utilities of punishment. Failure to reconcile these diverse philosophical viewpoints, through sustained debate over two centuries, has been a major source of intellectual dissatisfaction.
- Type
- Articles
- Information
- Copyright
- Copyright © The Royal Institute of Philosophy 1967
References
page 53 note 1 I am grateful to the John Randolph Haynes and Dora Haynes Foundation for financial assistance in the preparation of this paper.
page 53 note 2 Marx, Karl, ‘Capital Punishment’, in Bottomore, T. B. and Rubel, M. (eds.), Karl Marx: Selected Writings in Sociology and Social Philosophy (Harmondsworth, Middlesex: Penguin Books Ltd., 1963), p. 233Google Scholar. (This article was originally published in the New York Daily Tribune, February 18, 1853.)
page 54 note 1 Wootton, Barbara, Social Science and Social Pathology (London: George Allen & Unwin Ltd., 1959), p. 251.Google Scholar
page 54 note 2 Ibid., pp. 250–51.
page 54 note 3 Hart, H. L. A., ‘Prolegomenon to the Principles of Punishment’, Proceedings of the Aristotelian Society, 60 (1959–1960), pp. 1–26Google Scholar. Reprinted in Peter Laslett and W. G. Runciman (eds.), Philosophy, Politics and Society (Second Series) (Oxford: Basil Blackwell, 1962), pp. 158–182. My references will be to the latter edition.
page 55 note 1 See his article, ‘Legal Responsibility and Excuses’, in Hook, Sidney (ed.), Determinism and Freedom in the Age of Modern Science (New York: New York University Press, 1958), p. 101Google Scholar, where Professor Hart writes: ‘I do not know what to say to a critic who urges … that I have not shown that we are justified in punishing anyone ever, at all, under any conditions.’
page 55 note 2 Hart, ‘Prolegomenon’, p. 165. Cf. Benn, S. I., ‘An Approach to the Problems of Punishment’, Philosophy, 33 (1958), p. 327CrossRefGoogle Scholar. This view is also taken by Quinton, A. M., ‘On Punishment’, Analysis, 14 (1954), pp. 1933–42CrossRefGoogle Scholar, and Flew, A., ‘The Justification of Punishment’, Philosophy, 29 (1954), pp. 291–307.CrossRefGoogle Scholar
page 56 note 1 Hart, ‘Prolegomenon’, esp. pp. 172–77.
page 57 note 1 Knox, T. M. (trans.), Hegel's Philosophy of Right (Oxford: Clarendon Press, 1942), para. 99, pp. 69–70.Google Scholar
page 57 note 2 Benn, ‘Approach’, p. 328, n., remarks that ‘ “denunciation” does not imply the deliberate imposition of suffering, which is the feature of punishment usually felt to need justification’. Hart (‘Prolegomenon’, p. 159, n.), cites this claim with approval.
page 58 note 1 Hart writes in ‘Legal Responsibility’, p. 96: ‘I shall suggest a mercantile analogy. Consider the law not as a system of stimuli but as what might be termed a choosing system in which individuals can find out, in general terms at least, the costs they have to pay if they act in certain ways’. This view of the law is reiterated in ‘Prolegomenon’, p. 178.
page 58 note 2 Hart as I recall does not mention the idea of annulment. Benn derides this idea, or considers it intelligible only as a disguised utilitarian principle. In ‘An Approach’, p. 328, he argues: A veiled utilitarianism underlies Hegel's treatment of punishment, as annulling a wrong. For if punishment could annul the wrong, it would be justified by the betterment of the victim of the crime or of society in general. Not indeed that the argument is a good one; for the only way to annul a wrong is by restitution or compensation, and neither of these is punishment.… Similarly with the argument that punishment reaffirms the right. Why should a reaffirmation of right take precisely the form of punishment? Would not a formal declaration suffice? And even if the reaffirmation necessarily involved a need, right, or duty to punish, the justification would be utilitarian, for why should it be necessary to reaffirm the right, if not to uphold law for the general advantage? As I shall subsequently try to show, this argument is both doctrinaire and alien to the idea of just law.
page 58 note 3 In contrast with the view adopted here, Hart might be fairly described as a ‘conventionalist’ (in the Humean sense) in his view of a theoretical concept of law. He frequently adopts as a basis for discussion ‘advanced’ legal systems or enlightened legal practice. For example, his article, ‘Legal Responsibility’, begins with the statement, ‘It is characteristic of our own and all advanced legal systems that the individual's liability to punishment…is made to depend on, among other things, certain mental conditions’. He thus interprets the primary task of legal philosophy to be the elucidation of prominent characteristics of such systems and practices. Unfortunately, being advanced or enlightened does not insure freedom from obscurantism or injustice. But compare Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961)Google Scholar, ch. IX, where he adopts a concept of law with a ‘minimum content of natural law’.
page 61 note 1 The idea of expiation or more generally, personal acknowledgment and fulfilment of responsibility for wrongs committed, is mentioned only in passing in Hart's discussion (‘Prolegomenon’, p. 165).
page 62 note 1 Again I refer to Hart's economic analogy between the criminal law and a costing system. See note 1, p. 58.
page 62 note 2 Knox, Hegel's P. of R., Para. 101, Add. 64, p. 247.
page 62 note 3 For a brief recent summary of this tradition, see Feinberg, Joel, ‘Justice and Personal Desert’, in Friedrich, Carl J. and Chapman, J. W. (eds.), Justice (Nomos VI) (New York: Atherton Press, 1963), p. 82, n.Google Scholar
page 63 note 1 This paragraph is a radically simplified, though hopefully not unfair, summary of Hart's basic argument in defence of punishment.
page 66 note 1 This view of legal responsibility (to which Hart himself does not subscribe) and its basis in Bentham's philosophy, is critically discussed in ‘Legal Responsibility’, pp. 92–96, and in ‘Prolegomenon’, pp. 173–74.
page 67 note 1 I owe this language to the felicitous statement by Farrer, Austin, The Freedom of the Will (London: Adam and Charles Black, 1958), p. 276: ‘The legislator, we will say, is a rough schoolmaster to train us in a few typical responsibilities, and to enforce a few vital ones’.Google Scholar
page 67 note 2 Dewey, John, Human Nature and Conduct (New York: Modern Library, 1930), pp. 18–19.Google Scholar