‘The ul(mate reason for the state to punish law‐breakers is retribu(on. All other reasons are peripheral’. Discuss. State punishment is an exercise of state power. Punishment is an act said to be morally wrong so how are we to jus;fy their given right to impose inten;onal suffering on law‐breakers? It follows that the need to refine which type of state we are talking about is significant in order to help us jus;fy why the state is permiCed to punish, let alone why they do so. We also need to define what concept of punishment we will be using throughout the essay. Before then can we can delve into the essay ;tle by cri;cally analysing retribu;on and the other reasons for the state to punish law‐breakers. These reasons are explained under the umbrella term of ‘consequen;alism’, which includes: deterrence, expressionism and rehabilita;on. Finally I will conclude the essay by disagreeing with the essay ;tle and will formulate an answer that incorporates all reasons for punishment, as well as highligh;ng how isola;ng retribu;on as the ul;mate reason for the state to punish law breakers is rather unwise. The term ‘punishment’ is rather broad. In order to confine it, we will be using Hanna 1’s understanding of the term, which is based on the five characteris;cs of punishment iden;fied by Flew2. Punishment is ‘something that aims to inflict pain, suffering or burdens on an actual or supposed offender for a viola;on of rules’3 . To further define it, Feinberg 4‘s no;on of ‘hard treatment’, which ensures that burdens 5 are imposed upon law‐breakers, is implemented. This will 1 Hanna. M., (2009), “Liberalism and the general jus;fiability of punishment”, Philosophical Studies: An Interna5onal Journal for Philosophy in the Analy5c Tradi5on 145 (3): 325‐349 2 Flew, A., (1954), “The jus;fica;on of punishment”, Philosophy 29: 291–307 3 Hanna. M., (2009), “Liberalism and the general jus;fiability of punishment”, Philosophical Studies: An Interna5onal Journal for Philosophy in the Analy5c Tradi5on 145 (3): p329 4 Feinberg, J., (1994), “The Expressive Func;on of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p72 5 Such as the loss of liberty, money, ;me, or even life. PR24090 Candidate Number: 1308202 ensure comparable analysis of the different reasons for punishment; we cannot compare the effects of deterrence when looking at fines with the effects of rehabilita;on when focusing on prison sentences, simply because they are incomparable and different aspects of punishment. Failure to implicitly declare the use of the term ‘hard treatment’ would mean that our whole analysis throughout the essay would be incoherent and flawed from the start. The founda;on of this essay will be based upon the ethos of a liberalist state. As highlighted in Duff and Garland 6’s introduc;on, ‘liberal theories are concerned above all with individual rights and freedoms, and see the state’s purpose as being to provide individuals with a secure framework within which they can pursue their own lives and their own choices of the good.’ Therefore the main purpose of the state is to protect the freedom of individual ci;zens to ensure that they can go about with their lives safe from the threat of crime. Another possible state theory we could have chosen was that of Communitarian, a contrast to the Liberalist view. This is where, according to Duff and Garland 7, the state puts more emphasis on collec;ve goods rather than the view of individuals isolated from one another. The state would have larger and more posi;ve role in nurturing communal welfare and securing social values. However, there is a flaw in communitarian theory: although it looks at the state as a collec;ve whole, surely the people are the founda;ons of a state? Therefore is it not a flaw to disregard the interests on individuals in general? Before we can determine the ul;mate reason for the state to punish law‐breakers, we need to firstly jus;fy why the state is permiCed to punish within the liberal framework. Taking a 6 Duff, A. and Garland, D. (eds), (1994), A Reader on Punishment, Oxford, Oxford University Press, p3 7 Duff, A. and Garland, D. (eds), (1994), A Reader on Punishment, Oxford, Oxford University Press, p3 PR24090 Candidate Number: 1308202 consequen;alist point of view, as discussed in SinnoC‐Armstrong8’s work, punishment is jus;fiable, even if it inflicts pain or suffering on the offender because ‘a world with both the crime and punishment is beCer than a world with the crime but not the punishment’. This for;fies the idea that punishment is an instrument of the state, and emphasises the duty of the state to protect its ci;zen’s rights. One can say that punishment is a means to an end (which is good and harmony within the state). Having set up the premises for the essay, the analysis of the different reasons to why states punish law‐breakers can begin. Retribu;vism is a ‘backward looking’ focus on the rela;onship between individuals and the law. The core of the theory revolves around the no;on of desert, which gives the state a very strong reason to punish law‐breakers. To emphasise the duty of the liberalist state, Murphy highlights how ‘a system of law brings the benefits of protected freedom to each of its ci;zens, by imposing them all the burden of self‐restraint which obedience to the law involves offenders to accept the benefits which flow from the law‐abiding self restraint from others’ 9. A reason for punishing on the grounds of desert is supported by what Von Hirsch 10 calls the ‘unfair advantage’ theory. The ques;on here is ‘why is preserving the balance of supposed advantages a reason for invoking the coercive powers of the state?’ Von Hirsch’s answer is related to how the law breaker has gained addi;onal freedom unfairly in rela;on to his fellow ci;zens. On the basis that ‘any desert‐based theory of legal punishment assumes that criminal conduct is, in some 8 SinnoC‐Armstrong, W., (Winter 2012 Edi;on), "Consequen;alism", The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.) 9 Murphy, J. G., (1994), “Marxism and Retribu;on” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p48 10 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p115 PR24090 Candidate Number: 1308202 sense, reprehensible’ 11, he then jus;fies how the behaviour of the law‐breaker is treated as warran;ng blame. Hirst12, who views punishment as a teleological 13 topic, highlights that ‘punishment is a legal regula;on where regula;on is a process, and it need not be effec;ve’14. This highlights how it is the state’s duty to punish law‐breakers on the basis of desert regardless of the consequences. Wasserstrom 15, points out that trea;ng the offender as a wrongdoer is central to the idea of punishment. This goes hand in hand with our confinement of ‘hard treatment’ since, as men;oned by Feinberg 16, it effec;vely communicates to offenders the condemna;on which they deserve. Retribu;vism is heavily based on the assump;on that law breakers are ra;onal individuals. To support retribu;vists, Murphy17 argues that because of this idea, it does respect the offender’s rights and autonomy18 since the offender has, as a ra;onal agent, willed such a system of punishment in which no one profits from their own wrongdoing. This is further supported by McDermoC’s 19 view that retribu;vism ‘must, at a minimum, demonstrate that wrongdoers forfeit 11 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p116 12 Hirst, P., (1994), “The Concept of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press. 13 Rela;ng to the study of ul;mate causes in nature or of ac;ons in rela;on to their ends or u;lity. 14 Hirst, P., (1994), “The Concept of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p267 15 Wasserstrom, R. (1980), ‘Punishment’, in Philosophy and Social Issues: Five Studies, Wasserstrom, R. (ed.), Notre Dame, University of Notre Dame Press, pp. 112‐51 16 Feinberg, J., (1994), “The Expressive Func;on of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p72 17 Murphy, J. G., (1994), “Marxism and Retribu;on” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p48 18 In response to its cri;ques who argue that hard punishment takes away law‐breakers' rights and freedom 19 McDermoC, D., (2001), “The Permissibility of Punishment”: Law and Philosophy 20: 404 PR24090 Candidate Number: 1308202 rights when they commit their crimes’. He further uses Kant’s theory which correlates with the no;on of poli;cal obliga;on that because the law‐breaker ’derives and voluntarily accepts benefits from their coopera;on, he owes his own obedience as a debt to his fellow ci;zens for heir sacrifices in maintaining them.’ 20 Firstly, one can argue that in order to feel poli;cally obligated to others in a state, one needs to feel as if they are part of a community in the first place before they feel gra;tude for the mutual sacrifice everyone performs. Law‐breakers feel as if they are part of a community thus they believe that they can free‐load on benefits within the community. A further argument is that the economic and social structures and ins;tu;ons of the state had failed in preven;ng law‐breakers resor;ng to crimes in the first place. Opposite to retribu;on is consequen;alist theory, which includes deterrence, expressionism and rehabilita;on. They are forward looking whilst s;ll focusing on the rela;onship between the individuals and the law. With this theory, punishment is jus;fied by the good that it achieves. As highlighted by Von Hirsch 21, the ins;tu;on of punishment has preven;ve as well as reproba;ve features. Some may argue that the state punishes law‐breakers in order to deter the rest of the ci;zens from breaking the law, because of the fear of hard treatment. ‘Humans fall into tempta;on. On the assump;on that they are moral agents, the func;on of the disincen;ve is to provide a pruden;al reason for resis;ng the tempta;on.’22 In addi;on, ‘If the consequences of even emo;onal and impulsive acts are given some weight by most people, then the consequences of less emo;onal acts 23 are likely to play an even larger role in affec;ng the willingness of people 20 Murphy, J. G., (1994), “Marxism and Retribu;on” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p54 21 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p115 22 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p123 23 Such as shopliqing, auto theq, robbery , and burglary. PR24090 Candidate Number: 1308202 to engage in them.’24 Therefore deterrence also provides reasons for why the state punish law‐ breakers, as opposed to just purely based on retribu;on. However, as highlighted by Wilson 25 empirical evidence of rising crime rates have s;mulated a debate over the efficacy of deterrence 26. Wilson argues that ‘‘would‐be offenders are reasonably ra;onal and respond to their percep;on of the costs and benefits aCracted to alterna;ve courses of ac;on. When we use the word ‘deterrence’ we are calling aCen;on to the cost side of the equa;on.’ 27 However what happens if a criminal offends out of spontaneity and irra;onality? In spite of this form of human nature, one can argue that there is no excuse because the role of the state is to ensure that this does not happen, once again through its social and economic structures as men;oned earlier. Wilson 28 had suggested experimen;ng with the costs of crimes; perhaps the state could change the behaviour of the policemen to increase deterrence by making the police effort more focused and aggressive. Another cri;que of deterrence is that one would be advoca;ng a predic;ve hypothesis by trying to foresee the future. The whole basis of this idea already is at a disadvantage because objec;ve facts are not being observed. Furthermore, it is difficult to measure the effects of deterrent in rela;ons to punishment objec;vely. Another reason for state punishment is ‘expressionism’. This is where the punishment 24 Wilson, J. Q., (1994), “Penal;es and Opportuni;es” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p188 25 Wilson, J. Q., (1994), “Penal;es and Opportuni;es” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p177 26 This is because because in theory if deterrence was successful, there would be a decrease in crime rates since would‐be offenders are more fearful of commitng crime 27 Wilson, J. Q., (1994), “Penal;es and Opportuni;es” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p178 28 Wilson, J. Q., (1994), “Penal;es and Opportuni;es” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p192 PR24090 Candidate Number: 1308202 expresses the ‘the community's strong disapproval of what the criminal did.’29 Although Feinberg30 does see punishment in instrinsicalist terms 31 , one can suggest that expressionism is a subtle and extended branch of deterrence when he views punishment in consequen;alist 32 terms. This idea is supported when Von Hirsch 33 men;ons how desert theorists such as Kleinig 34 and Primoratz35 agree with the implementa;on of hard punishment in order for censure to be expressed adequately and seriously. However, this expressionist view cannot be the ul;mate reason why states punish law‐breakers. On its own it will not hold any weight because reasons given adhere the need for rehabilita;on: if the state had failed in expressing what is right or wrong behaviour in the state, then why would expressionism work now when the mentality of law‐breakers are rather indifferent to the morals and view points of the state? SinnoC‐ Armstrong 36 used Rawls 37 idea that a rule is accepted when it is built into public ins;tu;ons .Expressionism cannot be strongly coherent as a reason to punish law‐breakers before this idea is implemented. In his chapter, Hirst38 highlighted how libertarian lobby argues that ‘prisons have ‘failed’; 29 Feinberg, J., (1994), “The Expressive Func;on of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p76 30 Feinberg, J., (1994), “The Expressive Func;on of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p71 31 Where the law‐breaker suffers the condemna;on aspects of punishment. 32 Where the state should impose expressive punishments because they will or might bring about certain beneficial consequences. 33 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p121 34 Kleinig. J., (1992), ‘Punishment and Moral Seriousness’, Israel Law Review 25: 401‐21 35 Primoratz, I., (1989), ‘Punishment as Language’, Philosophy 64: 198‐202 36 SinnoC‐Armstrong, W., (Winter 2012 Edi;on), "Consequen;alism", The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.) 37 Rawls, J., (1995), “Two Concepts of Rules”, Philosophical Review, 64: 3‐32 38 Hirst, P., (1994), “The Concept of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p264 PR24090 Candidate Number: 1308202 they serve no purpose but to degrade inmates and to breed hardened criminals and, therefore, should be abolished’. An op;on of changing this view would be rehabilita;on in prisons 39. Rotman, an promoter of rehabilita;on, highlights how it ‘has enormous poten;al for humanising and civilising social reac;on against crime.’40 Rather than punishing the law‐breakers, ’rehabilita;on‐ orientated policies seek more effec;ve channels of social re‐entry.’41 It gives an op;mis;c view of the future of these law‐breakers becoming obedient and law‐abiding ci;zens by offering opportuni;es which will enable them to make crime‐free life a prac;cable op;on. By looking at the state rather than the individual law‐breakers, Rotman further argues how rehabilita;on is linked indissolubly with the reorganisa;on of the community’42 . On the contrary, one can argue that one cannot reorganise the community just like that; it is a joint effort combined with other parts of society, such as social and economic ins;tu;ons. Having men;oned this mul;ple ;mes throughout the essay, this is an indica;on of the need to look at the root causes of law‐breaker’s behaviour, in par;cular rela;ons to social and economic reasons. Another problem with rehabilita;on is that although it is a popular reason for why the state should punish law‐breakers in the first place, since it portrays the state in a good light of op;mis;cally wan;ng to change the morality of these law‐breakers, it does not actually fit in with our liberalist state premise. The liberal no;on of the state is to punish the wrong doers, not to 39 Which ‘comprises educa;onal opportuni;es; voca;onal training; justly remunerated work, medical, psychological and psychiatric treatment in an adequate environment’, as men;oned in Rotman’s work. 40 Rotman, E., (1994), “Beyond Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press,p284 41 Rotman, E., (1994), “Beyond Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p284 42 Rotman, E., (1994), “Beyond Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p284 PR24090 Candidate Number: 1308202 rehabilitate them on the basis which Rotman 43 suggests: ‘rehabilita;on, according to modern standards, can be defined tenta;vely and broadly as a right to an opportunity to return to (or remain in) society.’ Aqer looking at the four main possible reasons for why the state should punish law‐breakers, one can argue that there is a major flaw in the first three reasons for punishment: there is a massive assump;on that the state is perfect in upbringing these ci;zens, when they are not. In theory, if they were successful, there would not be the need to punish wrong doers as the reasons to why law‐breakers behave the way they do would be eradicated or non existent. However this no;on is rather futurist and idealis;c and one must deal with law‐breakers now. Therefore in direct response to the essay ;tle, one could advocate a reason which incorporates all the discussed reasons together. Instead of using the word ‘ul;mate’, perhaps retribu;vism is the ‘primary’ reason for the state to punish law breakers. In addi;on, punishment should be ‘propor;onate in their severity to the gravity of offences’, as advocated by Von Hirsch44. As a result this will consequently involve portraying the other faces of punishment, which in this case are deterrence and expressionism. Not only are they further reasons to jus;fy the use of hard punishments, these faces of punishment are indirectly beneficial for the state. However, these reasons can only be applied if the state has supposedly ‘not fail’ the law‐breaker45. If that is not the case, only then would the use of rehabilita;on on the offender be jus;fied, though in theory it would contradict the whole ethos of the liberalists state. Von Hirsch gives a lovely summary of the proposed 43 Rotman, E., (1994), “Beyond Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press,p286 44 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press. To clarify, the law‐breaker had access and benefited from the social and economic structures of the state, for example: educa;on and job opportuni;es. 45 PR24090 Candidate Number: 1308202 argument to the essay ;tle: Doing jus;ce was understood as a maCer of imposing on offenders punishments that were propor;onate, and thus retribu;vely appropriate, to their crimes. Only such a retribu;vists approach, it was argued, would treat offenders as autonomous moral agents, rather than as objects to be manipulated for u;litarian ends. However the approach of ‘Doing Jus;ce’ was mot purely retribu;vists: penal hard treatment must be deserved, and be propor;onate to the seriousness of the crime, but it must also be likely to achieve some social good by helping to prevent crime most obviously by ac;ng as a deterrent. 46 Therefore in conclusion, it is not possible to isolate one reason for the state to punish law‐ breakers because all the reasons discussed above provide advantages for the state, from jus;fying punishing the law‐breaker in the first place, to deterring others from ac;ng the same way, to ensure that there is a consensus on condemna;on of offenders to portraying state interven;on into rehabilita;ng and changing the morality of convicted offenders. Furthermore, if you apply only one ‘ul;mate’ reason, your view on the effects of the punishment will be reduced to only one mindset. Throughout the essay there had been so many different factors which had to be considered in order to answer the ;tle. Subtlety, one can argue that because of this, it is not possible to state an ‘ul;mate’ reason as required in the ;tle of the essay. As highlighted by Sparks 47, there are two faces of punishment: ‘punishment is both severely prac;cal maCer and a thoroughly expressive one. It is used in aCempts to intervene in and to control many forms of undesired behaviour’. Therefore one can portray punishment as if it a coin. ‘We don’t pursue 46 Von Hirsch, A., (1994), “Censure and Propor;onality” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p112 47 Sparks, R., (2003), ‘State Punishment in Advanced Countries’ in Punishment and Social Control, Blomberg, G.T. and Cohen, S. (eds), New York, Aldine de Gruyter, p.21 PR24090 Candidate Number: 1308202 punishments because they are the most efficacious means to an end, but because they are consequence of the prevailing mode of social organisa;on 48‘ Bibliography Books Blomberg, G.T., and Cohen, S. (eds), (2003), Punishment and Social Control, New York, Aldine de Gruyter. Duff, A. and Garland, D. (eds), (1994), A Reader on Punishment, Oxford, Oxford University Press. LaFolleCe, H. (ed), (1997), Ethics in Prac5ce, Oxford, Basil Blackwell. Wasserstrom, R. (ed.),(1980), Philosophy and Social Issues: Five Studies, Notre Dame, University of Notre Dame Press. Ar(cles BenneC, C., (2004), “Punishment”, Philosophical Books 45 (4): 324‐334 Flew, A., (1954), “The jus;fica;on of punishment”, Philosophy 29: 291–307 Hanna. M., (2008), “Say What? A Cri;que of Expressive Retribu;vism”, Law and Philosophy 27 (2): 123‐150 Hanna. M., (2009), “Liberalism and the general jus;fiability of punishment”, Philosophical Studies: An Interna5onal Journal for Philosophy in the Analy5c Tradi5on 145 (3): 325‐349 Kleinig. J., (1992), ‘Punishment and Moral Seriousness’, Israel Law Review 25: 401‐21 McDermoC, D., (2001), “The Permissibility of Punishment”: Law and Philosophy 20: 403‐432. Primoratz, I., (1989), ‘Punishment as Language’, Philosophy 64: 187‐205 Websites SinnoC‐Armstrong, W., (Winter 2012 Edi;on), "Consequen;alism", The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.) forthcoming URL = <hCp://plato.stanford.edu/archives/win2012/entries/consequen;alism/>. 48Hirst, P., (1994), “The Concept of Punishment” in Duff, A. and Garland, D. (eds), A Reader on Punishment, Oxford, Oxford University Press, p265 PR24090 Candidate Number: 1308202 PR24090 Candidate Number: 1308202