Published online by Cambridge University Press: 18 June 2009
It is extraordinary, when one thinks about it, how little attention has been paid by theorists of the nature and justification of punishment to the idea that punishment is essentially a matter of self-defense. H. L. A. Hart, for example, in his famous “Prolegomenon to the Principles of Punishment,” is clearly committed to the view that, at bottom, there are just three directions in which a plausible theory of punishment can go: we can try to justify punishment on purely consequentialist grounds, which for Hart, I think, would be to try to construct a purely utilitarian justification of punishment; we can try to justify punishment on purely retributive grounds; or we can try to justify punishment on grounds that are some sort of shrewd combination of consequentialist and retributive considerations. Entirely absent from Hart's discussion is any consideration of the possibility that punishment might be neither a matter of maximizing the good, nor of exacting retribution for a wrongful act, nor of some imaginative combination of these things, but, rather, of something altogether different from either of them: namely, the exercise of a fundamental right of self-protection. Similarly, but much more recently, R. A. Duff, despite the fact that he himself introduces and defends an extremely interesting fourth possibility, begins his discussion by writing as though, apart from his contribution, there are available to us essentially just the options previously sketched by Hart. Again, there is no mention here, any more than in Hart's or any number of other recent discussions, of the possibility that we might be able to justify the institution of punishment on grounds that are indeed forward-looking, to use Hart's famous term, but that are not at all consequentialist in any ordinary sense of the word.
3 We ordinarily think of principles of distributive justice as principles that tell us how various goods are to he distributed, when some distribution or other must be made and we want the distribution to be a just or fair one. As I show below, however, we sometimes have to distribute undesirable items (or outcomes) as well-“evils” or “harms,” as we might say-and, clearly, we need principles governing the justice or fairness of these distributive choices too. Note that these latter principles will, if I am right, be quite distinct from so-called “retributive” principles: the latter require harm to be imposed on those who have done wrongful harm to others and to be so imposed simply because the agent chose to do that wrong; principles of distributive justice, by contrast, tell us how to distribute harms, justly or fairly, when, regardless of what we do, someone will be harmed (or subjected to an increased probability of being harmed) by our action (or inaction)-see below for examples.
4 I assume that threats, including deterrent threats, must be justified-to the person against whom they are being made-because threats, at least in the present context, are made in an attempt to control the behavior of the person threatened, and because I believe that such attempts, being attempts to limit another's choices, arc justifiable only in special circumstances.
5 See, for example, Quinn, Warren, “The Right to Threaten and the Right to Punish,” Philosophy and Public Affairs, vol. 14 (1985), pp. 327–73.Google Scholar
6 Thomas Hobbes, of course, is the classic example-see especially Leviathan, ed. Oakeshott, Michael (New York: Macmillan Publishing Co., 1962)Google Scholar, ch. 14. Locke too, though, like many who have followed him, appears to think of the right to (rightful) self-defense as simply given by the law of nature-see especially Two Treatises of Government, ed. Laslett, Peter (New York: New American Library, 1963), Book II, ch. II.Google Scholar
7 A principle similar to this is defended by Montague, Phillip in “Punishment and Societal Defense,” Criminal Justice Ethics, vol. 2 (1983)CrossRefGoogle Scholar, and I am indebted to the spirit of Montague's argument in what follows. For more detailed remarks on aspects of the argument that follows, but without reference to the theory of punishment, see my “The justification of Deterrent Violence,” Ethics, vol. 100 (1990). pp. 301–17Google Scholar. An early (and quite inchoate) version of the line I try to develop here was sketched in my “The Justification of General Deterrence,” Philosophical Review, vol. 94 (1985), pp. 367–94Google Scholar. Also relevant, in connection with the theory of punishment, is my “Punishment without the State,” Noûs, vol. 22 (1983), pp. 437–53Google Scholar. I should note, in connection with the principle introduced in the text, that I am aware that there are cases where self-defensive violence would appear to most of us to be justifiable and yet would not be justified by a principle like P1: a case, for example, in which my “attacker” is himself innocent of any wrongful intent (he has been ruthlessly brainwashed, let us suppose, and is under the control of someone who is using him to harm me), but where, unless I seriously harm him, he will seriously harm me. Obviously, if self-defense is justified in such cases (and I think it sometimes is), P1 is not the principle that justifies it. However, far from thinking that the existence of such cases threatens the account I offer below (of a very different type of case), I think further reflection on such cases in fact supports the view defended here. But limitations of time and space preclude further discussion of this issue at present.
8 I say that the relevant wrongful choice must be an informed choice because the principle I wish to defend is plausible, in my view, only when the situation that results from the agent's wrongful choice is one he knew, or had good reason to believe, would likely result from that choice. In cases where an agent acts wrongfully, but without knowing (or having good reason to believe) that a choice-of-harms situation is likely to ensue (for another agent), P1 does not apply.
9 In “The Justification of General Deterrence,” and in “The Justification of Deterrent Violence,” I show that a principle like P1 can be used to justify deterrent violence in certain cases, independently of any antecedent threats, and hence can be used to justify “making an example” of someone in such cases, absent prior threats, without at the same time making oneself liable to the charge that, in so acting, one has “used” the person in question in a morally objectionable way.
10 I am using “evil” here, of course, simply to refer to undesirable outcomes, as explained in note 3 above.
12 One of these problems, of course, is that in actual practice no such device would ever harm only those who have wrongfully (and willfully) harmed others. What's more, everyone would know that this is so. Hence, we would have to justify both the wrongful harms the device does, if it does some, and the antecedent risk and fear of such harms, which we impose simply by constructing and activating the device. This is not the place, though, for a proper discussion of these problems.
13 A fuller discussion of automated-retaliation strategies would have to include a discussion of an analogue to the “proportionality requirement” that was included in P1. I omit is here, for the sake of brevity, because I am introducing the notion of an automated-retaliation strategy only as a heuristic: the point is to show that if such strategies can be justified, then what we might call “ordinary-threat strategies” can be justified as well. It is the latter point that is elaborated below.
14 By an “ordinary” threat I mean a verbal (or written) threat that the threatener implies will be carried out by him or his agent(s), at will, rather than by a machine, automatically.
15 This may be Quinn's position in “The Right to Threaten and the Right to Punish,” though this is not entirely clear from the text. It is also very likely Mabbott, J. D.'s position in his famous paper “Punishment,” Mind, vol. 48 (1939)Google Scholar, though this too is not entirely clear from the text.
16 My argument here is analogous to a famous argument of Hart, 's in “Punishment and the Elimination of Responsibility,” in Punishment and Responsibility, pp. 158–85Google Scholar; my argument differs from Hart's, however, in at least one crucial respect: while he uses the value of “choice” as one among many goods that must figure in an adequate utilitarian defense of the system he is defending, I am using it as part of an argument based entirely on the concepts of fairness and individual responsibility for the consequences of one's informed decisions.
19 Note that the account sketched above needs to be extended in a number of obvious ways. For example, the probability of attack is apparently not an important element, morally, in self-defense, or in the case of a threat-and-enforcement strategy, if we are imagining just a two-person world. However, in multi-person worlds, probabilities appear to be quite important, at least in the case of threat-and-enforcement strategies, so far as the justifiability of various penalties is concerned. Unfortunately, discussion of these and a number of related problems must await another occasion.
20 Crimes governed by laws of “strict liability” are an exception. This is as it should be, however, since many writers find such laws to be morally objectionable, while others, though finding them ultimately justifiable, admit that their justification requires an appeal to principles that are not required for the justification of the rest of the criminal law. For useful discussion, see Hart, , Punishment and Responsibility, especially essays II, V, VI, VII, and IX.Google Scholar