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Published online by Cambridge University Press: 25 February 2009
My aim in this article is threefold: First, I wish to challenge the view put forward by A. Flew and H. L. A. Hart which has won widespread recognition, namely, that the concept of punishment entails a legal or quasi-legal system of punishment. In my view all that is necessary for a case of punishment to occur is that a person (or body of persons) inflicts deliberately and not primarily for the sake of any beneficial consequences which may flow from his action, anything likely to cause discomfort to a victim who is capable of experiencing it, provided that the person inflicting the discomfort would claim, if asked to give a reason for his action, that he is inflicting it because of something (such as an act, event, state of affairs, or disposition) for which he holds the victim accountable. If I am right it follows that punishment is not necessarily retributive, and that utilitarian ‘punishment’ like reformative and compensatory ‘punishment’ is not true punishment, since the discomfort inflicted in these cases is merely ancillary to another end. Secondly, I hope to show that Hart does not succeed in discrediting the retributive theory, and that his treatment of punishment, though functional in aim, perpetuates the confusion between the meaning of punishment and its justification. Thirdly, I shall contend that retribution is not a proper aim of a legal system, whatever place it may actually have or ought to have in our moral code. Looking to the future, I shall venture to predict that the legal institution of punishment will sooner or later give way to a system designed to reduce crime and to rehabilitate offenders. Such a system will be adjusted to the needs of the community and of individual offenders, and will not involve the infliction of discomfort as an end. Hence, it would be wrong to call it a system of punishment.
page 216 note 1 ‘The Justification of Punishment’, Philosophy XXIX, 289 (1954).Google Scholar
page 216 note 2 ‘Prolegomenon to the Principles of Punishment’, Proc. Aristot. Soc., 60, N.S.I (1959).Google Scholar
page 217 note 1 ‘Deserved’ and ‘just’ punishment ace often used interchangeably, but strictly speaking, desert is a purely moral criterion, while justice has a legal and a moral aspect, either of which may predominate.
page 217 note 2 This distinction is often overlooked. Thus F. H. Bradley makes the absurd claim that ‘punishment is punishment, only where it is deserved’. Ethical Studies, Oxford University Press (1962), p. 26.Google Scholar
page 217 note 3 Cf. Mabbott, J. D., ‘Punishment’, Mind, 48, 152, p. 154 (1939).Google Scholar
page 217 note 4 This is apparently denied by Bradley who took the view that ‘having once the light to punish, we may modify the punishment according to the useful and the pleasant; but these are external to the matter, they can not give us a right to punish, and nothing can do that but criminal desert’. (Loc. cit., p. 27Google Scholar.) A. C. Ewing expresses a similar view, but so far from regarding it as compatible with the retributive theory he even finds difficulty in reconciling the latter with any reduction in the amount of deserved punishment: ‘If we are justified in increasing the punishment of the guilty as much as expediency bids and again in reducing it till it is hardly any punishment at all, what is left of the retributive view ? Practically nothing except the injunction not to punish the innocent on any account whatever, even if expediency seems to require it. But unfortunately even this meagre remnant is not secure against the critic. We are involved in difficulties as soon as we ask either what “punish” or what “innocent” means. For if “punish” means “inflict pain or harm”, it is hard to defend the doctrine that the innocent ought never for any reason to be put to the slightest discomfort, or caused the slightest harm, against their will. If, on the other hand, it means “inflict pain for the commission of a crime”, the command not to punish the innocent becomes little more than a tautology, since they have ex hypothesi not committed a crime. This criticism may appear purely verbal; and there is no doubt that the injunction in question does stand for a very important ethical principle….’ The Morality of Punishment, London, Kegan Paul (1929), pp. 41–42.Google Scholar
page 218 note 1 ‘An Approach to the Problems of Punishment’, Philosophy XXXIII, 325 (1958)Google Scholar. See also Benn, S. I. and Peters, R. S., Social Principles and the Democratic State, London, Allen & Unwin (1959)Google Scholar. The authors suggest that another criterion might be added, namely, that the unpleasantness to the victim should be an essential part of what is intended and not merely incidental to some other aim. Loc. cit., p. 174.Google Scholar
page 219 note 1 Loc. cit., pp. 299–300.Google Scholar
page 219 note 2 ‘Is Punishment Retributive?’, Analysis 16, 25 (1955), p. 28.Google Scholar
page 219 note 3 Ibid., p. 26.
page 220 note 1 ‘The Complexity of the Concepts of Punishment’, Philosophy XXXVII, 307 (1962).Google Scholar
page 220 note 2 Ibid., pp. 321–322.
page 220 note 3 Loc. cit., p. 27.Google Scholar
page 221 note 1 Loc. cit., p. 295.Google Scholar
page 221 note 2 Ibid., p. 296.
page 222 note 1 See supra.
page 222 note 2 Loc. cit., pp. 297–298.Google Scholar
page 222 note 3 See supra.
page 222 note 4 See supra.
page 222 note 5 Loc. cit., p. 299.Google Scholar
page 222 note 6 Loc. cit., pp. 5–6.Google Scholar
page 223 note 1 Ibid., p. 9.
page 223 note 2 Ibid., p. 8.
page 223 note 3 Ibid., p. 10.
page 223 note 4 Ibid., p. 12.
page 224 note 1 But see infra.
page 225 note 1 See Punishment and the Elimination of Responsibility, University of London, Athlone Press (1962)Google Scholar, and Hart, and Honor, é, Causation and the Law, Oxford, Clarendon Press (1959).Google Scholar
page 225 note 2 ‘Prolegomenon’, p. 17.Google Scholar
page 226 note 1 See supra.
page 226 note 2 ‘Prolegomenon’, p. 20et seq.Google Scholar See also Hart, H. L. A., ‘Punishment and the Elimination of Responsibility’, p. 27et seq.Google Scholar, and ‘Legal Responsibility and Excuses’, 95, p. 111et seq.Google Scholar, in Determinism and Freedom, ed. by Hook, S., New York, Collier Books (1961).Google Scholar
page 227 note 1 ‘Prolegomenon’, p. 16et seq.Google Scholar
page 227 note 2 See Samek, R. A., The Concepts of Act and Intention and their Treatment in Jurisprudence (1963) 41 A.J.P. 198.Google Scholar
page 228 note 1 ‘Prolegomenon’, pp. 23–24.Google Scholar
page 228 note 2 ‘Punishment and the Elimination of Responsibility’, p. 6et seq.Google Scholar
page 230 note 1 See Flew, , loc. cit., p. 302 interpreting Mabbott.Google Scholar
page 230 note 2 Crime and the Criminal Law, London, Stevens (1963).Google Scholar
page 230 note 3 This is the wrong word here.
page 230 note 4 Loc. cit., pp. 52–53.Google Scholar
page 231 note 1 Ibid., p. 95 et seq.
