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25. Social Practice / D. Justice / 3. Punishment / a. Right to punish

[what grounds the right of the state to punish]

20 ideas
Punishing a criminal for moral ignorance is the same as punishing someone for being blind [Epictetus]
     Full Idea: You should ask 'Ought not this man to be put to death, who is deceived in things of the greatest importance, and is blinded in distinguishing good from evil?' …You then see how inhuman it is, and the same as 'Ought not this blind man to be put to death?'
     From: Epictetus (The Discourses [c.56], 1.18.6-7)
     A reaction: This is the doctrine of Socrates, that evil is ignorance (and weakness of will [akrasia] is impossible). Epictetus wants us to reason with the man, but what should be do if reasoning fails and he persists in his crimes?
Perhaps we should persuade culprits that their punishment is just? [Epictetus]
     Full Idea: The governor Agrippinus would try to persuade those whom he sentenced that it was proper for them to be sentenced, …just as the physician persuades a patient to accept their treatment.
     From: Epictetus (The Handbook [Encheiridion] [c.58], 22)
     A reaction: This resembles the Contractualism of T.H. Scanlon (that actions are good if you can justify them to those involved). It may be possible to persuade people by the use of sophistry and lies. Nevertheless, a fairly civilise proposal.
No crime and no punishment without a law [Roman law]
     Full Idea: An ancient principle of Roman law states, nullum crimen et nulla poene sine lege, - there is no crime and no punishment without a law.
     From: [Roman law] (Roman Law [c.100]), quoted by A.C. Grayling - Among the Dead Cities Ch.6
     A reaction: That there is no 'punishment' without law seems the basis of civilization. Suppose a strong person imposed firm punishment in order to forestall more brutal revenge by others? What motivates the creation of criminal laws?
We execute irredeemable people, to protect ourselves, as a deterrent, and ending a bad life [Galen]
     Full Idea: We kill the irredeemably wicked, for three reasons: that they may no longer harm us; as a deterrent to others like them; and because it is actually better from their own point of view to die, when their souls are so damaged they cannot be improved.
     From: Galen (The soul's dependence on the body [c.170], Kiv.11.816)
     A reaction: The third one sounds like a dubious rationalisation, given that the prisoner probably disagrees. Nowadays we are not so quick to judge someone as irredeemable. The first one works when they run wild, but not after their capture.
Punishment should only be for reform or deterrence [Hobbes]
     Full Idea: We are forbidden to inflict punishment with any other design than for correction of the offender, or direction of others.
     From: Thomas Hobbes (Leviathan [1651], 1.15)
Reparation and restraint are the only justifications for punishment [Locke]
     Full Idea: Reparation and restraint are the only two reasons why one man may lawfully do harm to another, which is that we call punishment.
     From: John Locke (Second Treatise of Government [1690], 008)
     A reaction: But by 'reparation' does be mean retribution, or compensation? He doesn't rule out capital punishment, but that may qualify as maximum restraint.
Punishment should make crime a bad bargain, leading to repentance and deterrence [Locke]
     Full Idea: Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like.
     From: John Locke (Second Treatise of Government [1690], 012)
     A reaction: I gather that the consensus among experts is that the biggest deterrence is a high likelihood of being caught, rather than the severity of the punishment.
Self-defence is natural, but not the punishment of superiors by inferiors [Locke]
     Full Idea: It is natural for us to defend life and limb, but that an inferior should punish a superior is against nature.
     From: John Locke (Second Treatise of Government [1690], 236)
     A reaction: He is obliquely referring to the execution of Charles I, even though he may have been legitimately overthrown. I wonder what exactly he means by 'superior' and 'inferior'. An idea from another age!
There are natural rewards and punishments, like illness after over-indulgence [Leibniz]
     Full Idea: There can be natural rewards and punishments without a law-maker; intemperance, for instance, is punished by illness.
     From: Gottfried Leibniz (New Essays on Human Understanding [1704], 1.02)
     A reaction: Hm. Maybe if it didn't result in illness it wouldn't be labelled as 'intemperance'. Why isn't studying philosophy all day long classed as intemperance?
The death penalty is permissible, because its victims enjoyed the protection of that law [Montesquieu]
     Full Idea: It is permissible to put a criminal to death because the law that punishes him was made to protect him. For example, a murderer has enjoyed the benefits of the law by which he is condemned.
     From: Baron de Montesquieu (The Spirit of the Laws (rev. 1757) [1748], 15.02)
     A reaction: Dubious! We could add torture, and life imprisonment for parking offences, if this argument is sufficient justification.
If religion teaches determinism, penalties must be severe; if free will, then that is different [Montesquieu]
     Full Idea: When religion teaches that human actions are predetermined, penalties imposed by law ought to be more severe, for without these measures men would behave with complete abandon. If the dogma of religion is free will, the situation is altogether different.
     From: Baron de Montesquieu (The Spirit of the Laws (rev. 1757) [1748], 24.14)
     A reaction: Presumably persuasion and influence come into the free will picture. Calvinist Geneva was determinist, and Catholic France for free will.
We accept the death penalty to prevent assassinations, so we must submit to it if necessary [Rousseau]
     Full Idea: Whoever wills the end also wills the means. ...The death penalty inflicted on criminals can be viewed from more or less this point of view. It is in order to avoid being the victim of an assassin that a person consents to die, were he to become one.
     From: Jean-Jacques Rousseau (The Social Contract (tr Cress) [1762], II.05)
     A reaction: This seems to be roughly the spirit in which Socrates submitted to his death. I doubt whether many criminals agree with harsh punishments dished out to other criminals who get caught.
A trial proves that a criminal has broken the social treaty, and is no longer a member of the state [Rousseau]
     Full Idea: The legal proceeding and judgement are the proofs and the declaration that a criminal has broken the social treaty, and consequently that he is no longer a member of the state.
     From: Jean-Jacques Rousseau (The Social Contract (tr Cress) [1762], II.05)
     A reaction: This seems to be a plausible rationalisation of capital punishment, but what about lesser crimes. Is the interior of a prison a sort of temporary exile from the state? Hence the significance of whether prisoners are allowed to vote. But 19811.
Justice asserts the death penalty for murder, from a priori laws [Kant]
     Full Idea: All murderers …must suffer the death penalty. This is what justice, as the idea of judicial power, wills in accordance with universal laws of a priori origin.
     From: Immanuel Kant (Metaphysics of Morals I: Doctrine of Right [1797], §49 Gen E)
     A reaction: Illustration of how giving a principle an a priori origin puts it beyond dispute. Kant is adamant that mercy mustn't interfere with the enactment of justice. And Kant obviously rejects any consequentialist approach. Remind me what is wrong with murder?
Society can punish actions which it believes to be prejudicial to others [Mill]
     Full Idea: My second maxim is that for actions that are prejudicial to the interests of others, the individual is accountable, and subject to social or legal punishment, if society believes that this is requisite for its protection.
     From: John Stuart Mill (On Liberty [1857], Ch.5)
     A reaction: (wording compressed). The trouble with this would seem to be the possible disagreement between the individual and the society over whether the actions actually are prejudicial to others. It would justify a conservative society in being repressive.
Get rid of the idea of punishment! It is a noxious weed! [Nietzsche]
     Full Idea: People of diligence and goodwill, lend a hand in the one work of eradicating from the face of the earth the concept of punishment, which has overrun the whole world! There is no more noxious weed!
     From: Friedrich Nietzsche (Dawn (Daybreak) [1881], 013)
     A reaction: Nietzsche never tried his hand at school teaching or parenting or running a youth club. But I still love this idea. In really good families I suspect that punishment is almost unknown.
Execution is worse than murder, because we are using the victim, and really we are the guilty [Nietzsche]
     Full Idea: Why does execution offend us more than murder? It is the coldness of the judges, the painful preparation, the use of a man to deter others. For guilt is not being punished, which lies in the educators, parents, environment, in us, not in the murderer.
     From: Friedrich Nietzsche (Human, All Too Human [1878], 070)
     A reaction: Someone was stabbed to death in Oxford Street yesterday (26 Dec 11), and we all feel horribly that London is responsible for producing this event, even if we try and load all the blame onto one youth with a knife. Oscar Wilde endorsed this idea.
To punish people we must ourselves be innocent - but that undermines the desire to punish [Weil]
     Full Idea: In order to have the right to punish the guilty, we ought first of all to purify ourselves of their crimes. …But once this is accomplished we shall no longer feel the least desire to punish, or as little as possible and with extreme sorrow.
     From: Simone Weil (The Need for Roots [1943], III 'Growing')
     A reaction: Elsewhere she endorses punishment, as a social necessity, and a redemption for the wicked. This idea looks like a bit of a change of heart. She may be thinking of Jesus on the mote in someone's eye.
Deterrence, prevention, rehabilitation and retribution can come into conflict in punishments [Fogelin]
     Full Idea: The purposes of punishment include deterrence, prevention, rehabilitation, and retribution, but they don't always sit well together. Deterrence is best served by making prisons miserable places, but this may run counter to rehabilitation.
     From: Robert Fogelin (Walking the Tightrope of Reason [2003], Ch.2)
     A reaction: It seems to most educated people that retribution should be pushed far down the list if we are to be civilised (see Idea 1659), and yet personal revenge for a small act of aggression seems basic, normal and acceptable. We dream of rehabilitation.
Retributivists say a crime can be 'paid for'; deterrentists still worry about potential victims [Fogelin]
     Full Idea: A strict retributivist is likely to say that once a crime is paid for, that's that; a deterrence theorist is likely to say that the protection of potential victims overrides the released convict's right to a free and fresh start.
     From: Robert Fogelin (Walking the Tightrope of Reason [2003], Ch.2)
     A reaction: Interesting since the retributivist here has the more liberal attitude. Reformists will also have a dilemma when years in prison have failed to reform the convict. Virtue theorists like balance, and sensitively consider our relations with the criminals.