A Framework for Punishment: What Is the Insight of Hart’s ‘Prolegomenon’?

Abstract

Nearly all of H. L. A. Hart’s philosophy of criminal law is helpfully contained in his 1968 collection Punishment and Responsibility. Clearly the most influential essay in this volume is the first, ‘Prolegomenon to the Principles of Punishment’, originally delivered as the presidential address to the Aristotelian Society in 1959. And the most important insight of this chapter is that oversimplification and distortion are best avoided if we realize that ‘different principles (each of which may in a sense be called a ‘justification’) are relevant at different points in any morally acceptable account of punishment. What we should look for are answers to a number of different questions’.¹ In particular, Hart raised three (or perhaps four) separate questions about punishment and invoked distinct considerations about each: matters of definition, inquiries into the general justifyingaim, and disputes about distribution — the last of which he further subdivided into the issues of who should be punished and to what extent. Hart’s substantive views about these problems are celebrated. Even more influential, however, is the structure Hart brought to bear on the topic of how philosophical thought about punishment should proceed. The very first sentence in his ‘Prolegomenon’ indicates that the ‘main object of this paper is to provide a framework for the discussion of the mounting perplexities which now surround the institution of criminal punishment’.²