Philosophies of Punishment
This is an advance summary of a forthcoming article in the Oxford Research Encyclopedia of Criminology and Criminal Justice. Please check back later for the full article.
Numerous philosophical theories purport to justify a system of legal punishment. It is doubtful, however, that any of them successfully answer these three questions: Why punish? Who is to be punished? How much punishment is applied? Justifying punishment by appealing to consequences such as deterrence and incapacitation leads to difficulties with whom to punish and how much. Arguably, punishing an innocent person who is believed to be guilty could deter potential offenders, and a serious offense might be deterred with less punishment than a minor offense. Simple retributive theories that would justify punishment by appealing to the guilt of the offender don’t adequately answer the question of why the offender should be harmed in return for harm done. More-sophisticated retributive theories construe punishment as equalizing an unfair advantage taken by an offender. Such theories have difficulty with the question of how much to punish. Some philosophers see insurmountable problems either for strictly forward-looking theories that appeal to future consequences, or for strictly backward-looking theories that appeal to past guilt of an offender. The solution, then, could be a theory that is both forward looking and backward looking. The theory could appeal to future results—to provide a reason for punishing, but to look back at harm done by the offender to answer the question of whom to punish and how much. However, without a unifying rationale for taking these different approaches to these particular issues, such a theory would be ad hoc if not incoherent.
In recent decades, philosophers have offered several approaches that might avoid the pitfalls described. Censure theorists attempt to justify punishment as the state’s means of expressing disapproval of offenses against the law. Consent theorists hold that, in breaking the law, offenders voluntarily make themselves liable for punishment. Self-defense theorists argue that it is rational and justifiable for the state to threaten punishment in order to defend citizens against offenses. They then move by various strategies from the justifiability of the threat to the justifiability of punishment. Each of these theories faces difficulties, but proponents might judge that, even though they haven’t succeeded in stating the justification of punishment, their theory is on the right track. Others view the difficulties faced by all theories and boldly conclude that punishment is not justifiable; that we should adopt an alternative such as rehabilitation or restitution. Justifying either of these alternatives, however, is at least as problematic as justifying punishment. The situation is made even more troublesome by the fact that the theories surveyed aim to justify punishment in societies that have a just political structure and just laws. Even if such a theory succeeds, it is far from clear that it would justify punishment in a society where many of those who are harmed by punishment have also been victims of injustice.