Abstract
This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment’s permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such views struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment’s permissibility follows more straightforwardly from the fair play view of political obligation: specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment.
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Notes
Throughout this paper, I use “punishment” to refer to the legal institution of punishment. For an interesting discussion of nonlegal instances of punishment, and a critique of accounts (such as mine) that focus on legal punishment, see Zaibert (2006).
Hart writes, “… in relation to any social institution, after stating what general aim or value its maintenance fosters we should enquire whether there are any and if so what principles limiting the unqualified pursuit of that aim or value” (p. 10).
Matravers writes that “punishment theory must concern itself with the morality of attaching the threat of sanctions to rules (as well [as] the morality of imposing those sanctions on particular people). And whilst it seems plausible to 0074hink that the point of threatening sanctions must have something to do with preventing offending …, that is not the same as arguing that preventing offending through the threat and imposing of sanctions is morally permissible” (p. 7). Note also the distinction between the moral permissibility question and the “whom may we punish?” question: The answer to the latter question might be, e.g., “only those culpable for criminal wrongdoing,” but this answer would, in itself, say nothing about why punishment, i.e., the infliction of intentional harm, is a morally permissible response to criminal wrongdoing.
C.f., Rawls 1964, pp. 9–10, for a similar articulation of this view.
As Morris puts it, punishment “restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting the debt.” (p. 478).
It’s worth distinguishing two types of benefits that are not intended by any of the fair play advocates. First, the benefit gained by an offender is not characterized as a moral benefit. M. Margaret Falls criticizes the fair play view as being incompatible with “the tradition that says willing the moral good is the highest human good and therefore doing evil harms the evildoer” (Falls 1987, p. 31). I think it’s fair to say, however, that the fair play view operates within a tradition that recognizes a distinction between moral and prudential benefit, which believes that the latter does not necessarily collapse into the former, and which holds that an offender gains some prudential benefit through her crime. (Of course, if it’s true that what is prudentially good for us reduces to what is morally good for us, or even if any ostensible prudential benefit a criminal gains would be outweighed by the moral harm so that the criminal should be understood as harming herself all things considered, this will only support my conclusion below: that the fair play view cannot demonstrate an advantage that the criminal unfairly gains over others that is appropriately removed by punishment.) Second, the benefit gained by the criminal is explicitly not characterized as the material spoils of her crime. Thus, the relevant benefit unfairly gained by, say, the burglar is not the actual money or property that she steals, nor is the tax evader’s relevant benefit the tax money she doesn’t pay. If the benefit were characterized as the material gain from the crime, then removing this benefit would seem to be a matter merely of requiring the offender to compensate her victim(s); punishment, understood as the intentional imposition of hard treatment, would not seem necessary. For fair play defenders of punishment, therefore, it is crucial that the unfairly gained benefit is something distinct from the ill-gotten material gains.
As Dagger writes, “there are times for almost all of us when we would like to have the best of both worlds—that is, the freedom we enjoy under the rule of law plus freedom from the burden of obeying laws” (p. 483).
Other attempts have fared no better. George Sher, for instance, offers an alternative account according to which the offender gains freedom not from the burden of self-constraint, but rather “from the demands of the prohibition he violates” (Sher 1989, p. 82). As David Dolinko rightly points out, however, a criminal does not so much gain freedom from a moral prohibition as exhibit a freedom he already had (otherwise he could not have committed the crime), and this freedom is shared by law abiders (Dolinko 1991, p. 547).
The distinction I have in mind here, between undermining fairness and being unfair, is essentially one made by Philip Pettit (2003, p. 97). In discussing the difference between consequentialists and nonconsequentialists, Pettit points out two distinct ways in which we may respond to whatever we value: We may promote it, or we may honor it. What’s more, promoting what we value doesn’t necessarily imply honoring it, and vice versa. The converse is the distinction I have in mind: We may undermine some value, or we may violate it.
Consider, by analogy, which is the greater violation of fair play (i.e., the greater instance of free riding): the citizen who avoids paying taxes but nevertheless reaps benefits from the flourishing tax system, or the citizen who actively works to destroy the institution of taxation itself.
Some have objected that it is acceptance of benefits, not merely receipt of benefits, that can generate a fair play obligation. I consider this objection in section “Objections”.
Examples of secondary rules are “rules of recognition,” which provide some criteria for determining whether purported primary rules are in fact primary rules, i.e., which are legally valid; “rules of change,” which govern the process whereby primary rules may be enacted or repealed; and “rules of adjudication,” which govern the determinations of whether, in particular cases, primary rules have been violated (pp. 94–97).
Hart appears to have disagreed on this point, as he indicates in various passages that, as a conceptual matter, criminal laws must be backed by physical sanctions, i.e., punishment (see, e.g., ibid., pp. 34–35, 86; see also Kelsen 1946, p. 19). If this is right, so that criminal laws without punishment are not really criminal laws, then those who would endorse the abolition of punishment will face the unenviable task of also defending the abolition of criminal laws altogether. As I have indicated, however, I reject the view that criminal law entails punishment. Thus on my view, even if criminal statutes are themselves justified, the proposition that punishment is an appropriate mode of response to violations of these statutes nevertheless requires its own defense. I am grateful to Larry May for raising this point to me.
For discussions of the communicative aspect of punishment, see, e.g., Feinberg (1970), Hampton (1991, 2007), and Duff (1986, 2001). Note that, unlike Hampton and Duff, my view is not that this communicative aspect itself grounds the permissibility of punishment. But I do accept that an aspect of punishment is communicative, and as I discuss, part of this communication is to ask something of all community members, law abiders and offenders alike—viz., that if they don’t comply with the community’s criminal statutes, then they should accept being subject to punishment.
I thank Antony Duff for suggesting this point to me. More generally, I follow Duff in thinking that respect for offenders as autonomous moral agents, and as still members of the political community, requires that we engage them as active participants in their punishment, rather than passive recipients (see, e.g., Duff 1986, 2001).
Although conclusively establishing or disproving a deterrent effect has been a notoriously thorny matter, there is significant empirical evidence supporting the intuitive conclusion that criminal sanctions do have a deterrent effect. For instance, a 1978 panel commissioned by the National Academy of Sciences to review the research on deterrence effects stated, “The evidence certainly favors a proposition supporting deterrence more than it favors one asserting that deterrence is absent” (Blumstein et al. 1978, p. 7). Two decades later, one of the report’s co-editors wrote that “the evidence for a substantial deterrent is much firmer than it was fifteen years ago. I now concur … that the collective actions of the criminal justice system exert a very substantial deterrent effect” (Nagin 1998, p. 3).
I thank Christopher Heath Wellman for raising this objection to me.
See also Helga Varden’s helpful discussion of Kant’s account (Varden 2008).
I am grateful to Victor Tadros for raising this objection to me.
One might press the objection by claiming that surely there may be those—mob bosses or drug lords, for instance—for whom the legal institution of punishment is not, on balance, beneficial. I actually think mob bosses and drug lords do benefit from, and actually depend on, the existence of institutions of law enforcement and punishment to preserve the social order in which they illegally operate. Nevertheless, I concede the general point that if examples can be produced of criminals who cannot be said to benefit from the institution of punishment (yet for whom we nevertheless believe punishment is permissible), then this represents a serious challenge to the fair play account. I submit that proponents of the fair play account of punishment would do well to focus on objections such as this, rather than trying to establish what sort of advantage an offender unfairly gains, relative to other community members, through the commission of her crime. I thank Julia Driver for pressing me on this point.
One might object to Klosko’s claim here by pointing out that a community member could sincerely (albeit unwisely) claim not to want the benefits provided by national defense (or for our purposes, punishment), or at least not to want them enough to make cooperating worthwhile. This is a fair point. As Klosko’s phrase “must be interpreted” indicates, there is an intractable problem in such cases of determining whether the noncooperator is genuine about being willing to forego the benefits. Because the benefits are open and also indispensable to the community generally, there is no practical possibility of withholding the benefits to the noncooperator and thus testing whether her claim is sincere (and of course, it is reasonable to assume that the noncooperator is aware that this is so). Klosko indicates, and I’m inclined to agree, that we thus have good reason in such cases to suspect that the noncooperator’s claim is disingenuous. I recognize, however, that if, despite the epistemic challenge, a noncooperator in such circumstances could be determined to be sincere in her willingness to forego the benefits of the institution of punishment, then the fair play account would be hard-pressed to justify punishment in such a case. As I suggested in response to the previous objection, I believe this is the sort of challenge with which those sympathetic to a fair play defense of punishment should concern themselves, rather than questions surrounding the identification and removal of unfair advantages gained through criminal offenses.
Klosko has argued elsewhere that we nevertheless have political obligations with respect to other rules, and that these obligations are grounded in distinct principles (see Klosko 2005, esp. chap. 5). Analyzing Klosko’s broader account is beyond the scope of this essay.
Similarly, Klosko emphasizes the importance of security in describing “law and order” as “the advantages of a secure, protected environment, which provides one with security of the person and the realistic expectation of similar security in the future that allows one to plan ahead. According to major liberal theorists, e.g., Locke, the absence of law and order in this sense makes life in the state of nature to some degree intolerable.” (Klosko 1992, n30 p. 59).
My claim here rests on two empirical claims, either of which might be challenged. One might contend either that the security of community members does not depend on the rule of law, or alternatively that the rule of law’s bindingness does not depend on the institution of punishment. Thus even if security is understood to be an indispensable benefit, one might argue that punishment is not an indispensable means to achieving that benefit. Arguing for these empirical claims is beyond the scope of this paper, but I concede that if it could be shown convincingly that the security of community members could be ensured as (or more) effectively by means other than a system of laws backed by punishment, then the case I offer here for punishment’s in-principle permissibility would be correspondingly undermined. I am grateful to Antony Duff for pushing me on this point.
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Acknowledgments
I am very grateful to Antony Duff, Larry May, Victor Tadros, Christopher Heath Wellman, David Wood, and an anonymous reviewer at Criminal Law and Philosophy for their helpful comments on earlier drafts of this paper. Also, I presented previous drafts of the paper at the Washington University in St. Louis Political Theory Workshop, February 2010, and at the International Social Philosophy Conference at Ryerson University in July 2010. I thank the faculty members and students who participated in both sessions, especially Nate Adams, David Bauman, James Boettcher, Jeff Brown, Adrienne Davis, Julia Driver, Chad Flanders, Clarissa Hayward, Frank Lovett, Alistair Macleod, Ian MacMullen, Paul Moriarty, David Speetzen, Ron Watson, and Carl Wellman, for their thoughtful questions and suggestions during and after the sessions.
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Hoskins, Z. Fair Play, Political Obligation, and Punishment. Criminal Law, Philosophy 5, 53–71 (2011). https://doi.org/10.1007/s11572-010-9103-8
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DOI: https://doi.org/10.1007/s11572-010-9103-8