Abstract
Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does not require an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles of Punishment.
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Notes
Wringe 2013 pp869–71
My claim is that a plausible account of the nature of punishment is available to those who reject abolitionism.
But see in particular Section 2 and note 12 below.
As will become clear, I’m not willing to make the assumptions in question, so I don’t take the case to establish that AHR is false, but only that Hanna should not accept it. In Section 6, I give reasons for doubting that discussions of the kind of puzzle case considered here are the right way to go when trying to characterize punishment. I thank a referee for Ethical Theory and Moral Practice for encouraging me to clarify this point.
But see Wringe 2016 chapters 4–8 for attempts to extend the account beyond what we might think of as ‘paradigmatic’ instances of punishment.
See, in particular, Wringe 2016. My view is consistent with the truism that the state cannot perform any actions, including actions that constitute the punishment of offenders, except through the actions of individuals. It does not follow that the actions by individuals in virtue of which the state punishes offenders involves the punishment of offenders by individuals
For details of how acts of hard treatment can express something about a crime see Wringe 2016 chapter 3.
It might, for example, involve the expression of forms of contempt for offenders which we would find it hard to recognize as moral contempt – that is to say as the expression of an emotion which had as its proper object moral wrongdoing.
On my view, the intended audience of justified punishment is the population at large rather than the offender. See Wringe 2017 for further details.
It doesn’t follow from the fact that Thief enjoys his community service that he isn’t harmed. As Hanna 2017 notes, it isn’t a plausible constraint on an account of harm that an agent who is harmed takes themselves to be harmed.
Of course, it doesn’t follow simply from the fact that Thief’s liberty is restricted (or from the fact that he is thereby harmed) that he is punished. Being arrested and subjected to pre-trial detention is a restriction of one’s liberty, and on the account of harm we are considering here also a harm; but we might well think it is not a punishment. On my view this is because pre-trial detention doesn’t satisfy some of the other defining characteristics of punishment. (For more detail on precisely this kind of case see Wringe 2013). Nevertheless, I take it that the only plausible grounds for denying that Thief is punished in Judgment is the (mistaken) view that he is not harmed. I thank a referee for this journal for prompting me to add this clarification.
On my view the fact that Thief is harmed doesn’t explain why he is, in fact, punished. However, I think the deprivation of liberty that Thief suffers is enough to make his treatment harsh (in my terms), in most plausible societies.
Why is the best explanation not just that Thief has had an unfair trial? Because someone who had had an unfair trial and been acquitted - or been sentenced and then benefitted from a stay of release - needn’t be entitled to the same remedies.
For reasons that I shall discuss in the next section 1 do not think it can conclusively establish this. Nevertheless, I thank a referee for this journal for prompting me to address the issue considered in this section.
The same point applies with equal force to the idea that Incompetent Judge and Stoic State establish the falsity of AHR. I don’t take them to show this: I include them to show that someone who is committed to Hanna’s methodology should draw conclusions which are opposed to the ones he draws. I take the falsity of AHR to be demonstrated by the fact that when we impose harsh treatment on an offender but fail to harm them we don’t take ourselves to have failed to punish them (and our punitive practices bear this out) See Wringe 2013 pp. 863, 867–8.
Hart 1959 p4
Does this mean that Hart misrepresents himself as agreeing with Benn and Peters? He says that he is ‘drawing on’ the work of Flew and Benn. ‘(Hart 1959 p4). But ‘drawing on’ needn’t involve complete agreement.
Hart’s concern here is with the idea that committing an offence is a necessary condition for inflicting harm (with which he thinks some utilitarians will disagree); not with the idea that it is a sufficient condition. If he were concerned with this latter idea, there might be a stronger case for Hanna’s view.
I am grateful to India Golding and two referees for this journal for a number of useful comments.
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Wringe, B. Punishment, Jesters and Judges: a Response to Nathan Hanna. Ethic Theory Moral Prac 22, 3–12 (2019). https://doi.org/10.1007/s10677-018-9966-7
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DOI: https://doi.org/10.1007/s10677-018-9966-7