Punishment is the intentional and strategic infliction of suffering on an individual found guilty of a legal crime. Because the suffering inflicted by punishment for a crime often bears equal weight to the crime itself, punishment necessitates a fair amount of justification in terms of a comprehensive political and moral philosophy. The debate over this rationalization for punishment centers around two concepts and their related theories: utilitarianism, which looks primarily at the consequences of punishment, and retributivism, which looks primarily at the retributive justice of inflicting harm on a transgressor. Although both theories certainly have their own virtues, neither is a complete description or explanation of why punishment is necessary in society. For that reason, there are a number of ways in the literature to “compromise” between utilitarianism and retributivism that overcome each of the theories’ perceived weaknesses. Before examining which theory is truer in the modern world, or how the theories might be reconciled if need be, an explication of what exactly each theory states is necessary for an understanding of how criticisms might arise in the philosophical debate.
As both a theory of punishment and of ethics, utilitarianism looks at the consequences of particular actions for the group (and so is called a “consequentialist” theory). Generally, the moral theory of utilitarianism proposes that right and wrong are products of the balance of good and bad in a specific action (Corlett, 2008). Under the greatest pleasure principle, good is the product of pleasure and bad is the product of pain; as such, pleasure and pain are the standards for value in a system of utilitarianism. Clearly, this moral theory might be extended to the political debate over the justification of punishment. A judge might, for instance, attempt to determine whether a punishment is justifiable by considering the likely consequences of carrying out punishment, and whether such a punishment would produce the greatest balance of happiness over unhappiness, as compared with other available options (Corlett, 2008, p. 35).
Beyond this moral framework in which the theory operates, one finds the specific arguments for a utilitarian interpretation of punishment. Firstly, utilitarianism regards all punishment as intrinsically evil insofar as it inflicts suffering on an individual. Nonetheless, this infliction of pain is considered within a wider context based on its effects and may be j6ustified based on the extrinsic (or instrumental) gains that may outweigh the intrinsic evil of punishment (Bentham, 1948). These gains are taken to be benefits derived from a reduction in crime through deterrence, incapacitation, or rehabilitation of criminals. It is required of the utilitarian as a crucial premise in his or her argument to establish that systems of punishment actually reduce crime, instead of merely deferring or creating new kinds of crime. To the extent that societies criminalize behavior that promotes utility, these criminal laws will be just on this interpretation of utilitarian theory.
Within the idea of utilitarianism as applied to punishment, we find three important concepts: (a) deterrence, (b) incapacitation, and (c) rehabilitation. The first of these, deterrence, refers to the theorized reduction in crime that results from making crime too costly of a proposition for a potential criminal. That is, from economic perspective, by disincentivizing crime for individuals, the price becomes too high. Although the desire to commit crime exists, it is not followed through upon because of the severity of punishment. Under a utilitarian model, this works by making jail sentences or fines for a specific crime especially high. This escalation of penalty theoretically catches the attention of individuals who otherwise would commit that crime. For instance, capital punishment for murders is often said to have utilitarian use insofar as it allegedly deters potential murderers from committing capital crimes (Ehrlich, 1975). The deterrent effect of punishment might be disputed on the claim that human beings are not rational and do not consider costs and benefits. However, this fails to account for cost/benefit analyses that occur implicitly and in unstructured ways as criminals commit their illegal behaviors.
The concept of incapacitation refers to incarcerating criminals to prevent them from committing crimes. On a utilitarian interpretation of punishment, this benefits the whole in terms of keeping pain-producing actions from happening in the first place. In large part, these measures are preventative and aim to reduce crime rates by targeting previous offenders who are likely to commit crimes again. Like incapacitation, the concept of rehabilitation in utilitarianism is a preventative measure against crime. On this line of reasoning, the justice system should ensure that criminals are not the people who will likely commit crimes in the future. Instead of waiting until crimes are actually committed, making it a goal to intervene with individuals might create more harm than good from a cost/benefit perspective. Thus, utilitarian theories of punishment often include some justification on the basis of reforming individual humans’ behaviors to make them more in line with society’s values and laws.
Criticisms of the utilitarian theory of punishment, much like the corresponding moral theory, regularly occur by the use of example. One particularly potent example is provided by McCloskey (1972), who asks whether the punishment of one innocent person to prevent the unjust punishment of many innocent persons is justified. Intuitively, it cannot be so that the punishment of an individual person is just. No matter how a utilitarian chooses to respond to this case, the problem remains that punishing an innocent person is a wrongful, unjust act. Because utilitarianism is theoretically limited in scope to the balance of happiness versus unhappiness with respect to various actions, other facts like justice and desert are left out of consideration (Murtagh, 2005). For many, this situation proposes a serious problem to the utilitarian view of punishment insofar as it subjects individuals to the whims and caprices of a group interested solely in its own pleasures and pains, instead of a notion of justice that incorporates something beyond merely a balance between good and bad.
In responses to these criticisms of utilitarian theory, one might seek other options to justify a system of punishment. One of these options is retributivism, which gives justice and desert a central place in determining the appropriateness of punishment. According to this notion of retribution, wrongdoers are given what they deserve'”which is suffering in most cases (Murtagh, 2005). Retributivism takes punishment as an intrinsic good, as opposed to utilitarianism, which takes punishment as intrinsically evil. Proponents of retributivism claim one or more of the follow theses: punishment diminishes vigilante violence, satisfies citizen preferences for punishment, maintains a sense of social cohesion, and prevents crime by those not angered at the sight of others breaking the social contract with impunity (Moore, 2004). These characteristics of retributivism all unite several different concepts and theories about the nature and desirability of a retributive justice framework, and they do not describe one whole complete picture.
The philosopher Immanuel Kant defends a classic notion of retributive justice on the basis of a “principle of equality” (Kant, 1972), which is similar to the equality of interests a utilitarian considers in ethical decision-making. In essence, this view that the “scale of justice” should neither lean no more to one side than the other amounts to an eye-for-an-eye justice scheme that punishes a transgressor equally as much as the victim. As such, this form of justification for punishment provides a foundation for the death penalty in capital cases, which as a form of the principle of retaliation (which states that a crime one has performed is to be regarded as perpetrated on himself) and the principle of equality. Unlike in the case of punishing innocent persons for the good of others like in utilitarianism, retributive justice does not allow for the possibility of punishing innocent people under any circumstances. But even though Kantian and other versions of retributivism take the roles of justice and desert more seriously than their opponents, this does not necessarily mean it is a superior theory.
That is, if one imagines an example where there is no beneficial consequence of punishing an individual for a wrong done to another, then the retributivist theory would still commit society (or some other legal authority) to hand down punishment for that transgression. Because retributivism does not consider the consequences of punishment in the same way that utilitarianism does, it leaves out any mention of whether a punishment is justified in a situation where punishment will cause either (a) no positive outcome or (b) more harm as a result. For utilitarians and critics of retributivism, this is problematic for a number of reasons. First, this means retributivism and Kant’s theories are not universally applicable. Second, this means the aim of the Kantian theory is not the benefit of individuals or society, but rather it is punishment for the sake of punishment, without any end goal or purpose.
Between the options of retributive justice and a utilitarian interpretation (or justification) of punishment, there seems to be either a straightforward choice or a compromise between two extremes. As characterized, utilitarianism focuses on positive benefits for individual happiness; retributivism, in contrast, focuses on justice and desert, without so much as considering the positive or negative consequences of punishment. A compromise theory like that of H.L.A. Hart (1968) plays a role in resolving this conflict. In all cases where punishment is necessary, it will be carried out; except when that punishment would produce a negative consequence. As such, this system of punishment accounts for the justice and desert of primary importance to retributive justice, but also takes into consideration the kind of consequences borne out of carrying through the prescribed punishment. Also, this issue extends to the amount of punishment. Whereas Kant claims the scale of justice should not be tipped more for one than the other, utilitarianism regards the amount of punishment, like the act of punishing itself, necessary only to the extent to which it produces the most happiness. A compromise theory may agree more with the latter position.
The theory behind the justification of punishment in society is of the utmost importance because it reflects that group of people’s values, attitudes, and beliefs about more profound philosophical issues in moral and political thinking. Because systems of punishment are so ubiquitous and theoretically necessary, attempts to explain and justify their existence exist to ensure the deliberate infliction of suffering on moral and legal transgressors are not unreasonable. Two theories in particular bear a significant amount of weight in political philosophy as explanatory frameworks for institutions of punishment: utilitarianism and retributivism. These two models each focus on a number of different concepts; for instance, utilitarianism as represented by Bentham is focused on the consequences of punishment whereas retributivism as represented by Kant is focused on the justice and desert inherent to the act of punishment. To the extent that consequences and desert both matter in this issue, it seems a compromise between these two views, like that promoted by the philosopher H.L.A. Hart, is the most desirable option. Ultimately, however, the system of punishment one favors will result directly from one’s moral beliefs, whether they are utilitarian or Kantian, and an argument about the justification of punishment eventually boils down to an argument about normative ethics.
Bentham, J. (1948). The Principles of Morals and Legislation. New York: Hafner Publishing Company.
Corlett, J. (2008). Responsibility and Punishment. New York: Springer-Verlag.
Ehrlich, I. (1975). The deterrent effect of capital punishment: A question of life and death. American Economic Review, 65, 397-417.
Hart, H. (1968). Prolegomenon to the Principles of Punishment. In Punishment and Responsibility: Essays in the Philosophy of Law (pp. 1-27). New York: Oxford University Press.
Kant, I. (1972). Justice and Punishment. In G. Ezorsky, Philosophical Perspectives on Punishment (W. Hastie, Trans., pp. 102-106). Albany: State University of New York Press.
McCloskey, H. (1972). A Non-Utilitarian Approach to Punishment. In G. Ezorsky, Philosophical Perspectives on Punishment (pp. 119-134). Albany: State University of New York Press.
Moore, M. (2004). The institutional implications of retributivism. Retrieved 2010, from jRank Law Library: http://law.jrank.org/pages/1958/Retributivism.html
Murtagh, K. (2005, July 24). Punishment. Retrieved November 6, 2010, from Internet Encyclopedia of Philosophy: http://www.iep.utm.edu/punishme/