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Punishment and the Principle of Fair Play1
Published online by Cambridge University Press: 26 January 2009
Abstract
What I call the Just Distribution theory of punishment holds that the justification of punishment is that it rectifies the social distribution of benefits and burdens which has been upset by the offender. I argue that a recent version of this theory is no more viable than earlier versions. Like them, it fails in its avowed intention to deliver fundamental intuitions about crime and punishment. The root problem is its foundation in Hart's Principle of Fair Play, a foundation which, I argue, is inappropriate for a theory of punishment.
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- Copyright © Cambridge University Press 1997
Footnotes
1
An earlier version of this paper was read at the Pacific meeting of the American Philosophical Association in 1995. I am very grateful to my respondent on that occasion, Andrew Cross, who forced me to make the argument much clearer; and to Michael Davis, Brad Hooker, Trenton Merricks, Gene Mills and Peter Vallentyne, for helpful comments. The paper was written with the help of a Grant-in-Aid from Virginia Commonwealth University, for which I am very grateful.
References
2 In ‘Persons and Punishment’, The Monist, lii (1968)Google Scholar (reprinted in On Guilt and Innocence. Essays in Legal Philosophy and Moral Psychology, Berkeley, 1976, from which edition all of my quotations are taken).
3 Versions of it are also found in, for example, Davis, Michael, To Make the Punishment Fit the Crime, Boulder, 1992Google Scholar; Finnis, John, Natural Law and Natural Rights, Oxford, 1980Google Scholar; Murphy, Jeffrie, Retribution, Justice, and Therapy, Dordrecht, 1979CrossRefGoogle Scholar; Sadurski, W., Giving Desert Its Due, Dordrecht, 1985CrossRefGoogle Scholar; Sher, George, Desert, Princeton, 1987Google Scholar; and von Hirsch, Andrew, Doing Justice, New York, 1976Google Scholar.
4 ‘Guilt and Suffering’, Philosophy East and West, xxi (1971)Google Scholar (reprinted in On Guilt and Innocence; the quotation is from p. 104). Finnis takes the same view, though he holds that the aim provided by the Just Distribution theory is what makes a legal sanction a punishment (Finnis, p. 262). If the reasons overdetermine the justification, not all of them are necessary. But Morris is not explicit about the formal relations between these overdetermining reasons.
5 ‘Persons and Punishment’, 33f. I assume that this alludes to a broadly utilitarian justification, though Morris is not explicit about this.
6 Finnis, pp. 263f.
7 On the difficulties of finding suitable interpretations, see, e.g., Burgh, Richard, ‘Do the Guilty Deserve Punishment?’, The Journal of Philosophy, lxxix (1982)Google Scholar.
8 To Make the Punishment Fit the Crime. See also ‘Criminal Desert and Unfair Advantage: What's the Connection?’ (Law and Philosophy, xii (1993), 133–56)Google Scholar, in which Davis undertakes to answer critics who have argued, as I do, that his theory cannot deliver a satisfactory match between punishment and offence; so far as I can see, the criticisms I make here are untouched by his arguments in that paper. Davis does not regard his theory as explaining why the practice of punishment is justified in the way that Morris did; it is intended to explain only how much punishment is appropriate in particular cases. This difference will not affect the criticisms that I go on to make.
9 Might it be said that if noisy parties became sufficiently common that they posed a threat to the social order then they would also become correspondingly more serious? This may be true. It also remains true, however, that, on any normal measure, an individual act of, say, aggravated rape is much more serious than an individual act of lying – even in the imagined circumstances. Incidentally, the measure of seriousness of offences that Davis constantly appeals to is the level of punishment that is typically exacted (mainly in the United States). This may have to do with his assumption that ‘any correct theory of punishment must be a theory of the criminal law more or less as we know it’ (p. 144). But what is the criminal law? And who are we? I see little, other than a dogged conservatism, to recommend this assumption from a retributivist point of view. In any case, there is no reason to think that this measure will coincide very closely with the definition that he gives on p. 83.
10 Though does the licence make one immune from civil proceedings brought by the victim? If not, it is worth very little unless civil proceedings are difficult to pursue (as, of course, they notoriously are for nearly all victims of crime in some societies). Here we need to know more about the assumptions being made about the market and its setting.
11 He has now given it up (cf. p. 240), but not, it seems to me, for the correct reason.
12 ‘How to Make the Punishment Fit the Crime’, Ethics, xciii (1983), 744Google Scholar.
13 The problem may perhaps be overcome by holding that deterrent considerations alone could determine appropriately different levels of punishment. Whether this could be made to work I shall not pause to inquire.
14 The morally wooden rectification would, however, look no more appealing even in the voluntary setting.
15 Philosophical Review, lxiv, 1955Google Scholar (repr. in Political Philosophy, ed. A. Quinton, Oxford, 1967, from which edition all quotations are taken). The principle is also found in various versions in the work of Rawls.
16 Cf. Nozick, Robert, Anarchy, State and Utopia, Oxford, 1974, ch. 6Google Scholar.
17 Cf. Simmons, A. J., Moral Principles and Moral Obligations, Princeton, 1979Google Scholar.
18 As I shall explain later, it is a mistake to think that this necessary condition is also sufficient.
19 For Hohfeld's distinction between a claim and a privilege, see Thomson, Judith Jarvis, The Realm of Rights, Cambridge, MA, 1990, ch. 1Google Scholar.
20 Hart, of course, was trying to establish the existence of a natural right.
21 Not everyone, of course, would agree that urgent need alone generates rights; but this will not affect my argument.
22 Could it be said that if one had received benefits then the urgency of the need required to generate an enforceable duty might be correspondingly less? A reference to the receipt of benefits would not then be totally irrelevant. We need not pause over this question, since the Just Distirbution theory undertakes to derive enforceable duties from the receipt of benefits unaided by principles such as (c).
23 I think that there really are such people, but it is enough for my argument that they should be conceivable.
24 Davis's theory, recall, is a theory only of sentencing, not a theory about the justification of punishment.
25 Cp. Hart, , The Concept of Law, Oxford, 1961, p. 193Google Scholar; Taylor, Michael, The Possibility of Cooperation, Cambridge, 1987, p. 136Google Scholar.
26 There have been quite different attempts to bring the theory of punishment under the principles of distributive justice. See, for instance, Farrell, Daniel M., ‘Deterrence and the Just Distribution of Harm’, Social Philosophy and Policy, xii, no. 2 (1995), 220–40CrossRefGoogle Scholar.