Legal Punishment - SEP Notes
1 Legal Punishment & Its Justification
Key Q: What can justify formal, legal punishment imposed by the state on those
convicted of committing criminal offences?
- Issues of role of the state and its relationship to its citizens, and role of criminal law
What are we to justify in justifying punishment?
Legal punishment involves imposing something that is intended to be both burdensome
and reparative on a supposed offender for a supposed crime, by an individual or body
who claims to the authority to do so.
1 - Punishment is intentionally burdensome
Such punishments deprive people of things that they value such as liberty, money and
time; they require people to do things which they would not normally want to do or do
voluntarily e.g., unpaid community service, report to a probation officer regularly. The
distinction between punishment and other kinds of coercive imposition, such as taxation,
is that punishment is precisely intended to x.
2 - Unlike mere ‘penalties’, punishment’s character is condemnatory
Penalties such as parking tickets may be imposed to act as a deterrent of such penalised
conduct, or to recoup some of the costs that it causes without the intention of expressing
societal condemnation. However, if the primary purpose of punishment is deterrence, its
imposition, also expresses the censure or condemnation that the offender’s crime is to
take warrant.
We are therefore attempting to justify a practice but aims to burden those subjected to
such practice, and which conveys society’s condemnation of the offence.
3 Justificatory Issues (Hart, 1968)
1 - What moral demand can creating and maintaining a system of punishment satisfy?
2 - What principles should determine who is punished?
3 - How should the appropriate amount of punishment be determined?
By implying that we can hope to find a ‘complete normative account of punishment’ (an
account of how punishment can be justified) oversimplifies the matter. It is an illegitimate
assumption of much philosophy and legal discussion that punishment can be justified, but
normative theorists but open to the possibility that this practice cannot be justified. This is
not just a kind of extreme scepticism; there is a significant strand of ‘abolitionist’ penal
theorising which argues precisely that legal punishment cannot be justified and should be
abolished.
1
, 2 - Punishment, Crime & the State
Legal punishment presupposes:
- crime is that for which punishment is imposed
- criminal law is that which defines crimes as crimes
A system of criminal law presupposes:
- state which has political authority to create and enforce the law and impose punishment
A normative account of legal punishment and its justification must therefore at least
presuppose and make explicit:
- a normative account of criminal law (why should we have criminal law at all?)
- a normative account of the proper powers and functions of the sate
For any political theory that endorses the idea of citizenship as full membership of the
polity, the issue of how punishment can be consistent with citizenship must be
considered. To justify punishment at all, it must be shown how the imposition of
punishment can be consistent with the respect that citizens owe one another.
Concept of Crime
1 - Simple positive view of law
Crimes are kinds of conduct that are prohibited by the law, with threatened sanctions.
Bentham: combines positivism with normative consequentialism
- need to determine whether and when this method of controlling human conduct is
likely to produce a net increase in good in order to answer q of whether should
maintain a criminal law and what sorts of conduct should be criminalised
Criminal law portrays crime not simply as prohibited conduct, but as a species of
wrongdoing. This is something overlooked by Bentham’s perspective.
Notion of Wrongdoing
The notion of crime assumes that some wrongs are not merely ‘private’ affairs. Tort law
deals partial with wrongs that a non-private in that they are legally and socially declared as
wrongs, but they are still treated as ‘private’ wrongs in the sense that it is down to the
victim to seek legal redress.
A criminal case is between the whole political community (state or people) and the
defendant. The wrong is ‘public’ in that it is one for which the wrongdoer must answer not
just to the individual victim, but to the whole polity through its criminal courts. Wrongs
which are ‘public’ wrongs concern not just those who are directly affected, but all
members of the political community.
3 - Consequentialist Accounts
‘All punishment in itself is evil…[I]f it ought at all to be admitted, it ought only to be
admitted in as far as it promises to exclude some greater evil’ Bentham, 1789 (ch.XIII.2)
2
1 Legal Punishment & Its Justification
Key Q: What can justify formal, legal punishment imposed by the state on those
convicted of committing criminal offences?
- Issues of role of the state and its relationship to its citizens, and role of criminal law
What are we to justify in justifying punishment?
Legal punishment involves imposing something that is intended to be both burdensome
and reparative on a supposed offender for a supposed crime, by an individual or body
who claims to the authority to do so.
1 - Punishment is intentionally burdensome
Such punishments deprive people of things that they value such as liberty, money and
time; they require people to do things which they would not normally want to do or do
voluntarily e.g., unpaid community service, report to a probation officer regularly. The
distinction between punishment and other kinds of coercive imposition, such as taxation,
is that punishment is precisely intended to x.
2 - Unlike mere ‘penalties’, punishment’s character is condemnatory
Penalties such as parking tickets may be imposed to act as a deterrent of such penalised
conduct, or to recoup some of the costs that it causes without the intention of expressing
societal condemnation. However, if the primary purpose of punishment is deterrence, its
imposition, also expresses the censure or condemnation that the offender’s crime is to
take warrant.
We are therefore attempting to justify a practice but aims to burden those subjected to
such practice, and which conveys society’s condemnation of the offence.
3 Justificatory Issues (Hart, 1968)
1 - What moral demand can creating and maintaining a system of punishment satisfy?
2 - What principles should determine who is punished?
3 - How should the appropriate amount of punishment be determined?
By implying that we can hope to find a ‘complete normative account of punishment’ (an
account of how punishment can be justified) oversimplifies the matter. It is an illegitimate
assumption of much philosophy and legal discussion that punishment can be justified, but
normative theorists but open to the possibility that this practice cannot be justified. This is
not just a kind of extreme scepticism; there is a significant strand of ‘abolitionist’ penal
theorising which argues precisely that legal punishment cannot be justified and should be
abolished.
1
, 2 - Punishment, Crime & the State
Legal punishment presupposes:
- crime is that for which punishment is imposed
- criminal law is that which defines crimes as crimes
A system of criminal law presupposes:
- state which has political authority to create and enforce the law and impose punishment
A normative account of legal punishment and its justification must therefore at least
presuppose and make explicit:
- a normative account of criminal law (why should we have criminal law at all?)
- a normative account of the proper powers and functions of the sate
For any political theory that endorses the idea of citizenship as full membership of the
polity, the issue of how punishment can be consistent with citizenship must be
considered. To justify punishment at all, it must be shown how the imposition of
punishment can be consistent with the respect that citizens owe one another.
Concept of Crime
1 - Simple positive view of law
Crimes are kinds of conduct that are prohibited by the law, with threatened sanctions.
Bentham: combines positivism with normative consequentialism
- need to determine whether and when this method of controlling human conduct is
likely to produce a net increase in good in order to answer q of whether should
maintain a criminal law and what sorts of conduct should be criminalised
Criminal law portrays crime not simply as prohibited conduct, but as a species of
wrongdoing. This is something overlooked by Bentham’s perspective.
Notion of Wrongdoing
The notion of crime assumes that some wrongs are not merely ‘private’ affairs. Tort law
deals partial with wrongs that a non-private in that they are legally and socially declared as
wrongs, but they are still treated as ‘private’ wrongs in the sense that it is down to the
victim to seek legal redress.
A criminal case is between the whole political community (state or people) and the
defendant. The wrong is ‘public’ in that it is one for which the wrongdoer must answer not
just to the individual victim, but to the whole polity through its criminal courts. Wrongs
which are ‘public’ wrongs concern not just those who are directly affected, but all
members of the political community.
3 - Consequentialist Accounts
‘All punishment in itself is evil…[I]f it ought at all to be admitted, it ought only to be
admitted in as far as it promises to exclude some greater evil’ Bentham, 1789 (ch.XIII.2)
2
