Abstract
In this chapter, Lee considers contemporary consequentialist theories of punishment. Consequentialist theories look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. Lee argues that teleology is implausible because it is based on a problematic assumption about the fundamental value of criminal punishment. Aggregationism is a more reasonable alternative. It holds that punishment is morally justified because it is an institution that helps society to aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. Lee critically evaluates these theories and argues that only one specific deterrence theory, namely, her rights-protection theory, provides the most reasonable consequentialist account of punishment.
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For example, Bernard Harcourt suggests that, according to consequentialism, “punishment was a central part of prevention: it was, for instance, fully justified to lengthen a sentence (to punish more) for someone who recidivated because the recidivist carried a higher likelihood of reoffending” (2013, 258). Similarly, Kevin Arthur says that “detention designed to protect society from predicted but unconsummated offenses does not increase the likelihood of a fair trial. Accordingly, such detention is not simply regulatory” (1987, 403–4), and “a restraint on liberty such as preventive detention is regulatory rather than punitive only if it serves a ‘legitimate and compelling’ state purpose. The [U.S. Supreme] Court decided that crime prevention was such a purpose” (396).
References
Alexander, Lawrence. 1980. “The Doomsday Machine: Proportionality, Punishment and Prevention.” Monist 63, no. 2 (April): 199–227.
Arthur, Kevin F. 1987. “Preventive Detention: Liberty in the Balance.” Maryland Law Review 46, no. 2: 378–407.
Ashworth, Andrew, and Lucia Zedner. 2014. Preventive Justice. Oxford: Oxford University Press.
Bentham, Jeremy. 1970. An Introduction to the Principles of Morals and Legislation. Edited by J. H. Burns and H. L. A. Hart. Oxford: Clarendon.
Duff, R. A. 2001. Punishment, Communication, and Community. Oxford: Oxford University Press.
Ellis, Anthony. 2003. “A Deterrence Theory of Punishment.” Philosophical Quarterly 53, no. 212 (July): 337–51.
Farrell, Daniel M. 1985. “The Justification of General Deterrence.” Philosophical Review 94, no. 3 (July): 367–94.
———. 1989. “On Threats and Punishments.” Social Theory and Practice 15, no. 2 (Summer): 125–54.
Feinberg, Joel. 1965. “The Expressive Function of Punishment.” Monist 49, no. 3 (July): 397–423.
Harcourt, Bernard E. 2013. “Punitive Preventive Justice: A Critique.” In Prevention and the Limits of the Criminal Law, edited by Andrew Ashworth, Lucia Zedner, and Patrick Tomlin, 252–72. Oxford: Oxford University Press.
Kelly, Erin I. 2018. The Limits of Blame: Rethinking Punishment and Responsibility. Cambridge, MA: Harvard University Press.
Kershnar, Stephen. 2000. “A Defense of Retributivism.” International Journal of Applied Philosophy 14, no. 1 (Spring): 97–111.
Kleinig, John. 1973. Punishment and Desert. The Hague: Nijhoff.
Lee, Hsin-Wen. 2017. “Taking Deterrence Seriously: The Wide-Scope Deterrence Theory of Punishment.” Criminal Justice Ethics 36, no. 1 (April): 2–24.
———. 2018. “A New Societal Self-Defense Theory of Punishment—The Rights-Protection Theory.” Philosophia—Philosophical Quarterly of Israel 46, no. 2 (June): 337–53.
McCloskey, H. J. 1965. “A Non-Utilitarian Approach to Punishment.” Inquiry 8, nos. 1–4: 239–55.
Mill, John Stuart. 2011. Utilitarianism. 2nd ed. Edited by George Sher. Indianapolis, IN: Hackett.
Montague, Phillip. 1995. Punishment as Societal-Defense. Lanham, MD: Rowman & Littlefield.
Moore, Michael S. 1997. Placing Blame: A General Theory of the Criminal Law. Oxford: Oxford University Press.
Quinn, Warren. 1985. “The Right to Threaten and the Right to Punish.” Philosophy & Public Affairs 14, no. 4 (Autumn): 327–73.
Schauer, Frederick. 2013. “The Ubiquity of Prevention.” In Prevention and the Limits of the Criminal Law: Principles and Policies, edited by Andrew Ashworth, Lucia Zedner, and Patrick Tomlin, 10–22. Oxford: Oxford University Press.
Strawson, P. F. 1962. “Freedom and Resentment.” Proceedings of the British Academy 48: 1–25.
Tadros, Victor. 2011. The Ends of Harm: The Moral Foundations of Criminal Law. Oxford: Oxford University Press.
von Hirsch, Andreas. 2017. Deserved Criminal Sentences: An Overview. London: Bloomsbury.
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Lee, HW. (2023). Consequentialist Theories of Punishment. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_7
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