Version: v1, Published online: 1998
Retrieved October 23, 2019, from https://www.rep.routledge.com/articles/thematic/crime-and-punishment/v-1
An account of how state punishment can be justified requires an account of the state, as having the authority to punish, and of crime, as that which is punished. Crime, as socially proscribed wrongdoing, may be formally censured, and may lead to the payment of compensation to those injured by it – but why should it also attract the kind of ‘hard-treatment’ punishment which characterizes a system of criminal law? How should we decide which kinds of wrongdoing should count as crimes?
Consequentialists justify punishment by its beneficial effects, notably in preventing crime by deterring, reforming or incapacitating potential criminals. They face the objection that the wholehearted pursuit of such goals would lead to injustice – punishment of those who do not deserve it. Even if that objection is met by imposing non-consequentialist constraints on the system, they also face the objection that a consequentialist system fails to respect criminals as responsible moral agents.
Retributivists hold that punishment must be deserved if it is to be justified, and that the guilty (and only the guilty) deserve punishment. Positive retributivists hold that the guilty should be punished as they deserve, even if this will achieve no consequential good. Negative retributivists hold that only the guilty may be punished, but that they should be punished only if their punishment will be beneficial. The main objection to retributivism is that it fails to explain why the guilty deserve punishment.
Some retributivists have argued that the guilty deserve censure, and that punishment serves to communicate that censure. But why should we use ‘hard treatment’ such as imprisonment or fines to communicate censure? Does the hard treatment function as a consequentialist deterrent? Or could such punishments serve to reform or educate criminals, thus bringing them to repent their crimes and restoring their relationships with those they have wronged?
A theory of justified punishment must be related to our existing penal institutions. It must, in particular, have something to say about sentencing: about what kinds of punishment should be imposed, and about how sentencers should decide on the appropriate severity of punishment. A central issue concerns the role of the principle of proportionality: the demand that the severity of punishment should be proportionate to the seriousness of the crime.
But we must also ask whether our existing penal practices can be justified at all. We must face the abolitionists’ argument that punishment should be abolished in favour of social practices which treat ‘crimes’ not as wrongdoings that must be punished, but as ‘conflicts’ which must be resolved by a reconciliatory rather than a punitive process.
Duff, R.A.. Crime and punishment, 1998, doi:10.4324/9780415249126-T002-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/crime-and-punishment/v-1.
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