Hart, Punishment and Excusing Conditions

Abstract

Herbert Hart’s writings on the significance of responsibility for criminal punishment constitute one of the most important and impressive attempts to develop a principled argument for ‘excusing conditions’ within the framework of a basically utilitarian justification of punishment. It has been a common complaint against utilitarian approaches to criminal punishment that they have insufficient resources to explain why punishment should be restricted to those agents who acted voluntarily or in possession of the mental capacities relevant for free agency. Only desert-based, backward-looking theories of punishment could explain such restrictions satisfactorily, so the criticism has gone, because only they could explain why the state of the malefactor at the time of his action should be crucial for his criminal culpability. As Hart famously argued, however, such conditions on punishment can also be justified on grounds which have nothing to do with the issue of moral responsibility or moral blame but with the maximization of individual freedom and the protection of the efficacy of the individuals’ decisions.¹