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Punishment Theory’s Golden Half Century: A Survey of Developments from (about) 1957 to 2007

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Abstract

This paper describes developments in punishment theory since the middle of the twentieth century. After the mid–1960s, what Stanley I. Benn called “preventive theories of punishment”—whether strictly utilitarian or more loosely consequentialist like his—entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s. Crowding out preventive theories were various alternatives generally (but, as I shall argue, misleadingly) categorized as “retributive”. These alternatives include both old theories (such as the education theory) resurrected after many decades in philosophy’s graveyard and some new ones (such as the fairness theory). Only in the last decade or so have new vares o “consequentialism” appeared to dilute a debate among philosophers that had become almost entirely about “retributivism”. I shall describe this trend in more detail. The description will be less an update of my 1990 survey than a rethinking of it. The conclusion I draw from this rethinking is that we need to drop the utilitarian–retributivist (and nonconsequentialist–nonconsequentialist) distinction in favor of one sorting punishment theories according to whether they rely in part on empirical considerations (externalist theories) or instead rely (almost) entirely on conceptual relations (internalist theories).

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Notes

  1. Consider just the number of entries under “punishment” in the Philosopher’s Index for each ten year period, beginning with 1957 (the first decade of the half century): 104 for 1957–1967; 503 for 1997–2007 (a five-fold increase). The numbers of items for the intervening decades are: 224 for 1967–1977 (a doubling); 297 for 1977–1987 (small increase); 370 for 1987–1997 (increased by a third—the same as for the most recent decade). All of these numbers are, of course, impressive compared to the Index’s first decade, 1940–1950, which had only 30 items. For that reason, as well as because of the inventiveness of the decade beginning with 1954, a poetic license seems unnecessary to claim a golden half century (give or take a few years). Of course, the Philosopher’s Index understates the actual literature in question, since a significant part appears in legal journals and other academic publications the Index does not index. These numbers are, only suggestive; alone, they prove nothing about the quality of the literature in question.

  2. Edwards (1967, pp. 29–36).

  3. See, for example, Dolinko (1991), which begins with several paragraphs describing the rise of retributivism both in practice and in theory. Dolinko is among the few remaining utilitarians doing punishment theory—and one of the best critics of retributivism.

  4. Davis (1990).

  5. Edwards (1967, pp. 29–36).

  6. See Flew (1954), Benn (1958), Hart (1960). For a sustained critique of this definition, see McCloskey (1962)—which denies, among other things, that the standard definition identifies a central “problem of punishment” the solution to which is likely to be independent of the solution of any corresponding problem where “punishment” has one of its other senses; and also McPherson (1967), which denies, among other things, that “punishment” can usefully be defined except within a specific theory of punishment.

  7. See, for example, Cain (2002), Walls (2004), Kabay (2005).

  8. Note, for example, how a recent attempt to link punishment and revenge begins with a definition of punishment ignoring many of the features of the standard definition. Zaibert (2006). The assumption is that punishment is a practice possible in the state of nature. Yet, the origin of the word “punishment” is legal (or at least institutional). To assume the possibility of punishment in the state of nature seems to be like assuming a military order or tax bill in the state of nature; the assumption must rest on confusion or mere analogy. Institutionality is one of the ways in which punishment differs substantially from mere harming in response to wrongdoing.

  9. The modern discussion of this distinction seems to have begun with A. M. Quinton’s article, “On Punishment”, Analysis 14 (June 1954): 133–143.

  10. Rawls (1955, p. 5): “utilitarian arguments are appropriate with respect to questions about practices while retributive arguments [wrongdoing merits punishment and punishment should be proportioned to wrongdoing] fit the application of particular rules to particular cases.” Of course, Rawls himself gives a long list of precursors for his mixed view. Rawls (1955, p. 3, n2).

  11. The distinction between the morally permissible and the rationally required seems to be another important development of the decade before Benn’s Encyclopedia entry (Edwards 1967, pp. 29–30). See Armstrong (1961, p. 474), which distinguishes between the “point” of punishment (what makes it rational) and its “justification” (what makes it morally permissible). This article opens with an extended description of the marginal status of retributive theory at that time, a striking reminder of how much the second half of twentieth-century punishment theory differs from the first.

  12. See, for example, Merle (2000), Brooks (2003), Tunick (1996), Scheid (1983).

  13. Utilitarian theories of punishment seem differ from other consequentialist theories either in what consequences count or in how they are counted. For example, a utilitarian cannot (without ceasing to be utilitarian) give up the idea of maximizing good consequences (however defined) or count justice or equality as a consequence (that is, as good in addition to human happiness, social welfare, or whatever is the measure of utility). Nothing in what follows depends on this way of distinguishing utilitarianism from other forms of consequentialism—except the form of exposition.

  14. My case for that claim consists, in part, of a single word “merely” in the following sentence: “Judicial punishment can never be used merely as a means to promote some good for the criminal himself or for civil society”. Kant (1999, p.138). The other part of my case for the claim, too long to give here, is the congruence between the interpretation I have given this passage and various standard interpretations of Kant’s second version of the Categorical Imperative. Others have reached the same conclusions for somewhat different reasons. See, for example, Corlett (2006, p. 56). While Corlett seems to regard this as a significant departure from “pure retributivism”, I do not. It is a tie-breaking procedure. Such procedures typically depart from whatever procedure led to a tie in only a few cases and only after the procedure has done all it could. The justification of a tie-breaking procedure is (a) that some decision is better than no decision and (b) the procedure is convenient without sacrificing anything of significance.

  15. Many, perhaps most consequentialists, also “maximize” the consequence in question (differing in the good they seek to maximize and the costs they deduct). But nothing prevents a consequentialist from aiming at something less or different. And, indeed, any theory that recognizes a plurality of incommensurable goods (or evils) must adopt a standard of evaluation falling short of simply maximizing the good.

  16. This use of “internal” goes back at least to Hegel (2008), for example, Introduction §2:

    The science of right is a part of philosophy. Hence it must develop the idea, which is the reason of an object, out of the conception. It is the same thing to say that it must regard the peculiar internal development of the thing itself.

  17. Kant (1999, p. 116).

  18. I regard the choice between the terms “conceptual” and “internal” (or “empirical” and “external”) as a matter of taste so long as the underlying distinction is clear. Analytically trained philosophers seem to prefer the empirical–conceptual distinction; those trained in the continental tradition, the internal–external.

  19. So, for example, Benn–Edwards (1967, p. 30)—is inclined to treat education theory as a disguised utilitarianism rather than as truly retributive. Education, after all, is a consequence. This is not a mere slip. Benn explains his underlying rationale in Benn (1958, pp. 326–327):

    The retributivist refusal to look to consequences for justification makes it impossible to answer this question within his terms. Appeals to authority apart, we can provide ultimate justification for rules and institutions, only by showing that they yield advantages. Consequently, what pass for retributivist justifications of punishment in general, can be shown to be either denials of the need to justify it, or mere reiterations of the principle to be justified, or disguised utilitarianism.

  20. For others who find the term “retributive” misleading, see Cottingham (1979), Walker (1999).

  21. Actually, this is not quite right. The appeal to an actual constitution or social contract would directly answer question 2—but it would assume an answer to question 1 (for example, that the institution of punishment is morally permissible if, and perhaps only if, authorized by an actual constitution or social contract).

  22. Feinberg (1965). As Feinberg himself recognized, discussion of the expressive function has a long history within utilitarianism, going back at least to Stephen (1890, p. 99). Yet, I have not found a single theorist who, following Feinberg, explicitly revised the standard definition of punishment. The law certainly has an expressive function, but it generally seems to carry it out in words, that is, statutes, regulations, sentences, comments from the bench, and so on. The question that Feinberg raised is whether, in addition to these obvious forms of expression (or communication), the act of punishing adds something interesting. Modern empiricists seem to think not. For an exception, see Gahringer (1960).

  23. For an example of why utilitarians seem to find expressionism unattractive, see Walker (1991, pp. 21–24) where, however, the empirical version of the education theory seems to melt into it.

  24. Utilitarian theories are also famously (but apparently not decisively) vulnerable on moral grounds insofar as crime control is different from justice. See, for example, Rawls (1955, pp. 9–13).

  25. For a useful short discussion of these empirical failures, see Martinson (1978–1979). For a fuller, more nuanced, and more recent discussion of what the social sciences can do now—or might do later—see Barnes (1990).

  26. So, for example, while listings under “punishment” in the Philosopher’s Index have increased five-fold during the last forty years, listings under “punishment and deterrence” have remained almost steady (1967–77, 4; 1977–1987, 2; 1987–1997, 7; 1997–2007, 4).The pattern is much the same for “punishment and reform” (1967–77, 6; 1977–1987, 3; 1987–1997, 7; 1997–2007, 11): The pattern is somewhat different for “punishment and prevention” (1967–77, 1; 1977–1987, 3; 1987–1997, 4; 1997–2007, 8).

  27. Ellis (2005).

  28. Ellis (2005, p. 225).

  29. Ellis (2005, p. 225) does not himself appeal to the social sciences to answer that question but to opinion: “at least as far as the current levels of imprisonment are concerned, virtually no-one thinks this is now the case.” He does not explain how we are to distinguish between the fads that overwhelm common sense now and then (which an externalist should ignore) and a true rational assessment of evidence (which they are bound to respect). He does not even ask how such a common opinion could be justified (if it actually exists).

  30. For some recent defenses of this strand of restorative justice, see Walker (2006), Bennett (2006), Obold-Eshleman (2004), Gavrielides (2005), Dzur and Wertheimer (2002).

  31. For a good example of this second strand, see Benson (1998, pp. 227–259).

  32. See, for example, Barton (1999).

  33. Reiff (2005)

  34. Reiff (2005, p. 143).

  35. Reiff (2005, pp. 150–151).

  36. The works on Kant cited above seem to me to have missed this point (and so, to have supposed that Kant’s theory of punishment compromises with “consequentialism”.They are nonetheless right in seeing that Kant is willing to use “consequences” (a just social order) in justification of the institution of punishment, something generally missed. For a good discussion of Kant’s theory of punishment that makes clear that the entire argument is conceptual, see Hill (1999).

  37. Why the parenthetical hedge? We must, I think, include among “concepts” those propositions—such as that other people feel pain as I do—which, though perhaps not a priori truths, are part of what “everyone knows” (or, at least, what we would all, at our rational best, acknowledge)—what used to be called “self-evident truths” but are better thought of as empirical propositions (more or less) constitutive of rationality (at least for people much like us). They are necessarily evident to rational agents but not necessary truths “in themselves”. They may well be false in possible world distant from ours.

  38. For a good statements of the desert version of retributivism, see: Davis (1972), Kleinig (1973), Scheid (1997), Husak (1992), Moore (1993).

  39. Duff (1986), Nozick (1981, pp. 363–397), Hampton (1984). For a good critique of paternalist theories, see Schafer-Landau (1991).

  40. Montague (1995), Farrell (2004). For a critique of Montague (and, implicitly, Farrell), see Davis (1997).

  41. Among important discussions of the expressive theory are: Skillen (1980), Primoratz (1989), von Hirsch (1993), Metz (2000). For an internalist critique of expressive theory, see Davis (1991).

  42. But see Alexander (1991), which argues that defense theory lacks the resources for a theory of proportion.

  43. Indeed, some of the possibilities given here have been realized. For moralistic retributivism relying on analogy with forfeiture, see Goldman (1979), Morris (1991), Simmons (1992, pp. 148–161), McDermott (2001). For moral restitution, see Barnett (1977), Cederblom (1995).

  44. Note, however, that at least some moralists only make the modest claim that they are providing a partial justification of punishment (rather than the only justification). See, for example, Morris (1981), Hampton (1992) in which she adds expressivism and—in n2—deterrence to her educational justification of punishment.

  45. Defense of innocents is an exception because there does seem to be a duty to defend an innocent (other than oneself). That duty is, however, limited to situations where the cost and risks to the defender are not significant. The criminal law probably does not satisfy that condition. The costs of criminal justice are high—and the risks to other innocents are, in some jurisdictions at least, substantial.

  46. For important discussions of the fairness theory (and related issues), see Dagger (1993) and (a critic) Ellis (1997).

  47. Morris (1968). This article was, of course, widely read an astonishingly powerful defense of retributivism in general or the fairness theory in particular. I admit to being so converted to retributivism when I read the article in the mid-1970s. Why the article should be so misread I cannot say.

  48. Morris (1981).

  49. Finis (1972), Murphy (1971a).

  50. Murphy stated the theory in Murphy (1971b) and then dismissed it as unrealistic in Murphy (1973).

  51. Murphy (1987).

  52. See, especially, Philips (1985), Moore (1989), von Hirsch (1991): 549–380, Schafer-Landau (1996), Ellis (1997)—though Ellis understands that my primary interest is sentencing and related matters.

  53. Davis (1983).

  54. Among the chief supporters are: Gewirth (1978, pp. 294–299), Hoekema (1980), Sadurski (1985, pp. 221–258), Scher (1987, pp. 69–88).

  55. For an extended defense of this point, see Davis (1988).

  56. For a good example of this mistake, see Dolinko (1994, p. 508):

    Davis's market allows us, for example, to decide that voluntary manslaughter deserves a lesser punishment than murder, but we cannot say what punishment for voluntary manslaughter actually suffices to remove that crime's "unfair advantage." Thus, California recently raised its maximum penalty for voluntary manslaughter from six to eleven years, and Davis's market model leaves us unable to decide whether the state has at last authorized the proper, deserved punishment for this crime or has instead chosen a penalty nearly twice what the crime deserved.

    It seems not to have occurred to Dolinko that justice (and therefore the constraints of a reasonable theory) might leave a range of choices in which, given other penalties, both six years and eleven years for manslaughter might be morally permissible and not ruled out by other considerations. It also seems not to have occurred to Dolinko that, given other penalties for other crimes (say, murder or mayhem), eleven years might be too high.

  57. Murphy (1973).

  58. There are, then, important differences between my four criteria and those that Murphy (1987, pp. 510–512) offers. According to Murphy, a “complete” theory of punishment should answer all five of the following questions:

    1. 1.

      What is the nature of crime and punishment?

    2. 2.

      What is the moral justification of punishment?

    3. 3.

      What is the political justification of punishment?

    4. 4.

      What are the proper principles of criminal liability?

    5. 5.

      What are the appropriate punishments?

    Two of Murphy’s five questions are beyond punishment theory proper: one (1), because the answer (the standard definition) is now assumed; and the other (3), because its answer belongs to political theory (as Murphy’s nomenclature acknowledges). The other three questions cover much the same ground as my four criteria, but are less precise (ignoring, for example, the distinction between the four senses of “justification”). They are also more demanding. I do not require a theory to answer his questions 4 and 5, merely to “help” answer them. Indeed, Murphy’s five questions are so demanding that I cannot think of a single writer on punishment whose theory would count as “complete” under it. No wonder Murphy concluded that Kant did not have a theory of punishment!

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Acknowledgments

An early version of this paper was presented to the Humanities Colloquium, Illinois Institute of Technology, Chicago, on February 8, 2008. I should like to thanks those present—as well as Angelo Corlett, Brian Ellis, Steve Kershnar, and Don Scheid—for their helpful comments.

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Davis, M. Punishment Theory’s Golden Half Century: A Survey of Developments from (about) 1957 to 2007. J Ethics 13, 73–100 (2009). https://doi.org/10.1007/s10892-008-9040-0

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