Abstract
I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to reject punishment in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Unless otherwise noted, I will be talking about the institution or practice of punishment throughout.
Barry does not offer a general justification himself. He proposes using Thomas Scanlon’s criterion of reasonable rejection as a principle of liberal theorizing. See Scanlon (1998). Scanlon uses this criterion to make some important remarks on the justifiability of punishment.
These contexts introduce complexities that I set aside, e.g., the case of the punishment of young children in the context of the family. I set the punishment of children aside because it is not clear what justificatory status children have on liberal theory (there may not be as pressing a need to justify the punishment of young children to them, given their limited intellectual and moral capacities) and I do not think the permissibility of punishing young children terribly relevant to the permissibility of punishing adults.
Even if my arguments are put in terms of types of punishments, however, they are no less significant. Advocates of punishment argue for the type of punishment that my arguments are directed against and the justificatory limitations on liberal enforcement that my arguments reveal have significant consequences for the manner in which liberal enforcement can justifiably be conducted. For an example of a theorist who takes a broader view of punishment see Collingwood (1989).
This, of course, does not mean that there are not strong reasons against such practices. False imprisonment and murder are not necessarily punishments either, but much can be said against them.
I should note that the alternative I propose is significantly different from those traditionally proposed by opponents of punishment and their sympathizers. See, e.g., Bianchi and Swaaningen (1986) and Golash (2005). Abolitionists, as they are sometimes called, traditionally propose non-forceful, non-coercive alternatives, sometimes seeking to limit the use of force and coercion to cases of imminent self-defense. Their alternatives include purely formal trials and symbolic condemnation, forms of “restorative justice” like compensation and various attempts to effect reconciliation between offenders, their victims and the wider community. While there is room for these alternatives, I think there is also room for substantial, non-punitive use of force and coercion. The perceived plausibility of Abolitionism has suffered by Abolitionists’ failure to take sufficient account of these possibilities.
Unless otherwise noted, page references in this subsection are to Rawls (1971).
One may worry that, since my proposed alternative incapacitates, it is committed to restricting offenders’ rights and so to harming them. This does not follow, however, as offenders presumably do not have the right to commit their offenses. Taking away someone’s ability to commit murder is arguably not, in itself, the taking away of a right. Of course, with relatively crude enforcement techniques at hand (e.g., imprisonment), incapacitation does limit rights, but this is arguably incidental. Moreover, it is the sort of effect my alternative would be concerned to minimize where possible.
I will simplify things a bit. When the deliberators are in the original position, they do not have to decide whether or not to authorize punishment. They must decide in a constitutional convention conducted after they have chosen principles of justice in the original position (pp. 196–199, 240). In the constitutional convention, the veil of ignorance is partially lifted and the deliberators know relevant general information about their society such as its culture and economic development. They remain ignorant of their places in society, their natural talents and their comprehensive conceptions of the good, however. These aspects of the veil of ignorance are all I need for my argument against a general liberal justification. For the sake of simplicity, then, I do not distinguish between the different stages, save for the purposes of addressing complications related to the increased information available in later stages.
Extremely harsh punishment, however, would threaten to make offenders worse off than (or perhaps as worse off as) the least favored group would be in the absence of cooperation.
I suspect the least favored group would actually satisfy a quite complex description, e.g., economically disadvantaged apprehended offenders who have also been the victims of serious offenses. This does not seriously affect my argument however, so I will set it aside for simplicity’s sake.
This is not to say that non-forceful, non-coercive means of dealing with offenses can never work. Rawls, for example, thinks that in a well-ordered society sanctions may never have to be imposed (p. 240). Such exotic possibilities can be set aside, however.
Here I mean both recidivists who have committed crimes of sufficient severity and offenders who, even if they have only offended once, have committed offenses so serious that our risk tolerance for recidivism is quite low.
The assurance problem cuts both ways, however. Extremely harsh, poorly regulated enforcement systems will themselves threaten assurance.
Unless otherwise noted, page references in this subsection are to Ackerman (1980).
I qualify things with the word “many” here because Ackerman’s discussion implicitly involves another idealization. He does not consider offenses that involve refraining from certain behaviors. He only discusses aggressive attempts to tamper with the liberal state’s distribution of resources. Offenses of the former sort seem to call for a different sort of coercion than the kind of incapacitation Ackerman describes, but I will set these complications aside since the idealization is effectively discarded as his argument progresses.
Unless otherwise noted, page references in this subsection are to Scanlon (1998).
This is not to deny that harsher enforcement techniques might be necessary to achieve these conditions in the first place. Such a fact would not mean that harsher enforcement techniques are generally justified.
References
Ackerman, B. (1980). Social justice in the liberal state. New Haven: Yale University Press.
Barry, B. (1995). Justice as impartiality. New York: Oxford University Press.
Benn, S., & Peters, R. S. (1959). Social principles and the democratic state. London: George Allen & Unwin Ltd.
Bianchi, H., & van Swaaningen, R. (Eds.) (1986). Abolitionism: Towards a non-repressive approach to crime. Amsterdam: Free University Press.
Collingwood, R. G. (1989). Essays in political philosophy. New York: Oxford University Press.
Dimock, S. (1997). Retributivism and trust. Law and Philosophy, 16, 37–62.
Duff, R. A. (1992). Alternatives to punishment—or alternative punishments? In W. Cragg (Ed.), Retributivism and its critics. Stuttgart: Franz Steiner.
Duff, R. A. (2001). Punishment, communication and community. New York: Oxford University Press.
Estlund, D. (2002). Comments on Geoffrey Sayre-McCord, ‘criminal justice and legal reparations as an alternative to punishment’. In E. Villaneuva (Ed.), Social, political and legal philosophy. Amsterdam: Rodopi.
Feinberg, J. (1963). Justice and personal desert. In C. Friedrich & J. Chapman (Eds.), Nomos VI: Justice. New York: Atherton Press; reprinted in Doing and deserving (1970), Princeton: Princeton University Press.
Flew, A. (1954). The justification of punishment. Philosophy, 29, 291–307.
Golash, D. (2005). The Case against punishment: Retribution, crime prevention, and the law. New York: New York University Press.
Hanna, N. (2008). Say what? A critique of expressive retributivism. Law and philosophy, 27, 123–150.
Hart, H. L. A. (1959). Prolegomenon to the principles of punishment. In Proceedings of the Aristotelian society, Vol. 60, pp. 1–26; reprinted in Hart, H. L. A. (1968). Punishment and responsibility. New York: Oxford University Press.
Hoekema, D. (1980). The right to punish and the right to be punished. In H. G. Blocker & E. H. Smith (Eds.), John Rawls’ theory of social justice: An introduction (pp. 239–269). Athens, OH: Ohio University Press.
Honderich, T. (1969). Punishment: The supposed justifications. New York: Harcourt, Brace & World.
Lacey, N. (1988). State punishment: Political principles and community values. London: Routledge.
Lucas, J. R. (1968). Or else. In Proceedings of the Aristotelian society, Vol. 69, pp. 207–222.
Matravers, M. (2000). Justice and punishment: The rationale of coercion. New York: Oxford University Press.
McCloskey, H. J. (1962). The complexity of the concepts of punishment. Philosophy 37, 307–325.
Murphy, J. G. (1973). Marxism and retribution. Philosophy and Public Affairs, 2, 217–243.
Murphy, J. G. (1985). Retributivism, moral education, and the liberal state. Criminal Justice Ethics, 4, 3–11.
Murphy, J. G. (1990). Getting even: The role of the victim. In E. F. Paul & F. D. Miller (Eds.), Crime, culpability and remedy. Cambridge, MA: Basil Blackwell.
Narveson, J. (1974). Three analysis retributivists. Analysis, 34, 185–193.
Rawls, J. (1971). A theory of justice. Cambridge, MA: Harvard University Press.
Sayre-McCord, G. (2001). Criminal justice and legal reparations as an alternative to punishment. Philosophical Issues, 11, 502–529.
Scanlon, T. (1998). What we owe to each other. Cambridge, MA: Harvard University Press.
Sterba, J. (1977). Retributive justice. Political Theory, 5, 349–362.
Ten, C. L. (1987). Crime, guilt, and punishment. Oxford: Clarendon Press.
Wasserstrom, R. (1982). Capital punishment as punishment: Some theoretical issues and objections. Midwest Studies in Philosophy, 7, 473–502.
Acknowledgments
Many thanks to Kenneth Baynes, Ben Bradley, Edward McClennen, Kris McDaniel and Michael Stocker for helpful comments on earlier versions of this paper and helpful discussions of these issues. Thanks also to participants at the Syracuse University ABD Workshop, where I presented a shorter version of the paper, and to my commentator Michael McFall.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Hanna, N. Liberalism and the general justifiability of punishment. Philos Stud 145, 325–349 (2009). https://doi.org/10.1007/s11098-008-9234-0
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11098-008-9234-0