The following essay was part of the second year of my MA in Philisophy and set out to examine which problems criminal punishment poses for liberalism, especially in view of John Rawls‘ theory of punishment in “A Theory of Justice”.
This essay draws heavily on my previous essay about punishment in the light of the reason constraint which is twice as long and thus more detailed. The new ideas in this essay are the ones that deal specifically with John Rawls and those about moral luck.
“All punishment is mischief:
all punishment in itself is evil.”1
Punishment “is an authority’s infliction of a penalty on an offender”2 and thus at least “appears to involve overriding a person’s autonomy”3, making it sound like a deeply illiberal measure which could never be reconciled with liberalism.
According to Rawls, a criminal justice system and its sanctions do not violate liberal principles, but actually “can be derived from the principle of liberty”4. He only sees a “danger to the liberty of the … citizen” if “these sanctions will wrongly interfere with his freedom”5.
Rawls argues that “even in a well-ordered society the coercive powers of government are … necessary for the stability of social cooperation”6 and names the income tax scheme as an example that would not work on a voluntary basis7.
I fear that Rawls reaches this conclusion rather too quickly and easily. Although it seems to be intuitive to demand that transgressions of the law shall be punished8, even this short essay will hopefully show that once we delve into the justifications offered for punishment (and justification is required in a liberal state or society for such severe intrusions into a person’s autonomy as imprisonment), many of these justifications are unconvincing and self-contradictory.
In “Theory of Justice”, Rawls provides two justifications for his theory of punishment and explicitly rules out a third one.
For Rawls, the criminal justice system is like “men’s security to one another”9 to ensure that others comply with the rules, which in turn is necessary for our own decision to comply with these same rules10.
As a second justification for punishment, Rawls states that “a propensity to commit [criminal] acts is a mark of bad character”11 and that “in a just society legal punishments will only fall upon those who display these faults”12.
In Rawls’ view, punishment must not be “a scheme of taxes and burdens designed to put a price on certain forms of conduct and in this way guide men’s conduct”13.
The “assurance argument” sounds like a description of the theory of general deterrence14.
The theory of deterrence is based on the aim of preventing15 or at least reducing future crime16: punishment is justified because or “in as much as it deters people from breaking the law and thus prevents harm in the future”17.
Deterrence consists of two main aspects which face quite different philosophical problems and thus always have to be recognised and discussed as two different aspects:
a) Special deterrence18 19 aims at the offender himself/herself. The punishment shall serve as a reminder to the offender of the consequences of his or her criminal action for himself/herself and shall thus make him or her refrain from (at least similar) criminal acts in the future20.
b) General deterrence21 seeks to deter potential imitators. The punishment shall serve as a reminder of what the consequence would be for someone else if they were to break the law in a similar way as the offender in question.
One obvious problem with general deterrence is that it violates the means/end constraint22 because it uses one offender as an example for others to learn from it. When A, B, C and D commit the same crime independently from each other and only B is caught and brought to court, it is hard to see why B should bear the burden of being punished in order to serve as an example for the rest of the population. It is hard to see how the (possible future) actions of others, on whom B has no influence, can be used as a justification for punishment in the relationship between the state and B.
Another problem with deterrence is that it needs to work in order to justify punishment23. While it might seem logical at first that a sentence deters an offender from re-offending and also makes would-be offenders think twice (thus working like the economic [dis-]incentive24 that Rawls derides25), the evidence is actually not as overwhelming26. One plausible reason for this is that would-be offenders don’t think about the possible punishment at the time of their offence27, for the simple reason that most of them don’t plan to get caught by law enforcement28.
The “bad character argument” is a very surprising one coming from Rawls, as he has emphasised that natural assets (such as character) are distributed by chance and luck and that nobody “deserves” them29. It seems inconsistent to deny that rights or entitlements are established by character (and other arbitrary factors) but then to argue that “bad character” is the basis of deserving punishment30.
Also, if “bad character” was really the core reason for punishment, as Rawls suggests31, the system of punishment would need to look completely different from the one in place now, as the following examples will illustrate:
Let us imagine that A and B both attend a party and get drunk. They both get into their respective car and drive home, although both of them know that it is against the law and that it is potentially dangerous.
A falls asleep due to the intoxication and veers off the road into a tree. He is not hurt.
B falls asleep due to the intoxication, veers off the road and hits a passer-by, killing him32.
If “bad character” was the basis of punishment, both A and B would have to be punished equally because they committed the same character mistake of driving drunk. That the outcomes are different is only due to chance, it is absolutely arbitrary. Yet, in most penal systems B would be punished more severely than A.
We can change this example and imagine that A wants to kill somebody on the way home, let’s say for his strange concept of excitement, whereas B just wants to get home.
It then happens that A gets home safely and without killing anybody. B however, falls asleep again, veers off the road and kills somebody.
If “bad character” was the basis for punishment, there would be good arguments for punishing A or at least not punishing B (less than A) because A is the one with the intent to kill, indisputably a “bad character” trait. The only extent of B’s “bad character” was that he was too lazy or stingy to call a taxi to take him home, surely a less evil character trait than wishing to kill innocents for one’s own enjoyment.
Yet, in most penal systems, B would be punished much more harshly than A (who would would get a fine for drunk driving).
Taking this thought of punishing “bad character” to its extreme could result in a criminal code that knows only one criminal offence, that of “not accepting the law“, punishable by one uniform penalty. If disobedience of the law – or the “character flaw” behind this decision to violate the consensus of one’s society or country – is the main trigger for punishment, then one could argue that disobeying a statute against drunk driving is equally bad as disobeying a statute against homicide.
In addition to these concerns, I have an even stronger reason for my dislike of the “bad character” argument: I believe that questions of citizens’ character are not the business of the state33. I do agree that the democratically elected majority in a state’s parliament can determine what is a crime34 and what is not, but I do not want to see the state trying to impose its (majority’s) moral beliefs onto each individual citizen. Although it might be ideal if a criminal trial convinces the offender to accept the law35, the law cannot make its acceptance a requirement36. This would go beyond the normal realms of law enforcement and cross the threshold to a “thought police”.
The economic analysis of punishment which is dismissed by Rawls37 is in my view much more respectful of the individual and his/her autonomy.
People are free to choose if they offend or not. In a state governed by the rule of law38 they more or less know what the law is39, they can look it up before deciding whether to offend and they can trust that the law won’t be changed after the fact and applied retroactively. Rawls described this “price system” model in more detail in an earlier article40. It can also be viewed as part of the “economic theory of law”41, in which offenders are viewed “as having voluntarily chosen to risk penalties as the price of disobedience”42 and punishment “supplies a motive for avoiding some actions and doing others”43 44. I find this a realistic depiction of most offenders’ thinking, as is demonstrated by research that would-be offenders are not put off by harsh sentences45, but by a high likelihood of being detected and convicted46 or a combination of these two risks.
This still leaves people the choice between obeying or disobeying the law and purely engages with their reason. This treatment of people as autonomous beings is after all “a prominent element in liberal thought”47.
Deterrence which respects offenders as economically thinking agents who make decisions based on weighing their options, an interpretation which I find not inappropriate in our (over-)economised societies, does not want to change people’s opinions or minds. It just wants them to know the consequences of their actions and act accordingly. Deterrence certainly wants to reduce crime, but if somebody chooses to re-offend again and again, it will simply make him or her pay the advertised price and not try to change his personality or make him “repent” or any other semi-religious act48.
Of the possible justifications for punishment covered in this short paper, I deem deterrence based on the economic analysis of punishment the only acceptable one.
1Bentham 1789: chapter 13, paragraph 2.2(c)
2Honderich 1989: 19 quoted according to Matravers 2001: 233
3Matravers 2001: 233
4Rawls 1999: 212
5Rawls 1999: 211
6Rawls 1999: 211
7Rawls 1999: 211
8Moore 1987: 112
9Rawls 1999: 211
10Matravers 2005: 76
11Rawls 1999: 277
12Rawls 1999: 277
13Rawls 1999: 276-7
14Matravers 2005: 77 writes that ”Rawls invokes deterrence without defending it.“
15Duff 2008: section 3; Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 39
16Matravers 2001: 238
17Matravers 2001: 238
18Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 40
19Matravers 2005: 78 calls it “specific deterrence“.
20Matravers 2001: 238
21Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 40
22Which is based on Immanuel Kant: Matravers 2001: 234
23Duff 2008: section 3; Honderich 1989: 51-8 quoted according to Matravers 2001: 239
24Rawls 1967: 3
25Rawls 1999: 276-7
26Doob/Webster 2003: 49-51; Duff 2008: section 3; Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 39, 44 and 47 fn. 1
27Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 44
28Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 45
29Matravers 2005: 77
30Matravers 2005: 77
31Rawls 1999: 277
32I owe this example to Fiery Cushman who introduced it in a “Philosophy Bites“ podcast.
33Duff 2008: section 6; Matravers 2001: 252-253; Matravers 2005: 77
34Within the confines of the rule of law, the applicable constitution and international law that the state in question has ratified.
35Duff 1986: 1 and 5
36Duff 2008: section 6
37Rawls 1999: 276-7
38Rawls 1967: 1 lists the basic requirements of rule of law and points out that Hobbes already mentioned these in Leviathan, chapter xxviii.
39Walker 1980: 215
40Rawls 1967: 3
41Posner 1985: 64-6; Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 41
42Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 40; Walker 1980: 215
43Rawls 1967: 3; Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 41
44Doob/Webster 2003: 71-74 explain why offenders do not always act as economists say they should.
45Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 40; von Hirsch/Bottoms/Burney/Wikström 1999: 57-63
46Roberts/Ashworth in von Hirsch/Ashworth/Roberts 2009: 41
47Matravers 2005: 77
48As the communicative theories of punishment require.
Duff, R. A. and Garland, David (1994) (editors) A Reader on Punishment, Oxford, Oxford University Press
Rawls, John (1999) A Theory of Justice, Revised Edition, Cambridge, Massachusetts, Harvard University Press
Von Hirsch, Andrew; Ashworth, Andrew and Roberts, Julian (2009) (editors) Principled Sentencing: Readings on Theory and Policy, 3rd edition, Oxford, Hart Publishing
Bentham, Jeremy (1789) “Punishment and Deterrence”, An Introduction to the Principles of Morals and Legislation, chapter 13 (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the chapter and paragraphs of the original edition)
Doob, A. N. and Webster, C. M. (2003) “Studies of the Impact of New Harsh Sentencing Regimes” and “Offender’s Thought Processes”, both from Crime and Justice: A Review of Research, edited by Tonry, M., volume 30, Chicago, Illinois, University of Chicago Press (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Duff, R. A. (1986) “Expression, Penance and Reform”, Trials and Punishments, Cambridge, Cambridge University Press, pp. 233-66 (reprinted as reading 7.2 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
Moore, Michael (1987) “The Moral Worth of Retribution”, Responsibility, Character, and the Emotions: New Essays in Moral Psychology, edited by Schoeman, F., Cambridge, Cambridge University Press (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Posner, Richard (1985) “Optimal Sanctions: Any Upper Limits?”, An Economic Theory of Criminal Law, Posner, Richard, 85 Columbia Law Review 1193 (reprinted in von Hirsch/Ashworth/Roberts  and quoted by the pages of the reprint)
Rawls, John (1967) “Two Concepts of Rules”, Theories of Ethics, edited by Foot, P., Oxford, Oxford University Press, pp. 149-53 (reprinted as reading 7.1 to accompany the A850 Postgraduate Foundation Module in Philosophy, Milton Keynes, The Open University and quoted by the pages of the reprint)
Walker, N. (1980) “Reductivism and Deterrence”, Punishment, Danger and Stigma, Walker, N. (reprinted in Duff, R. A. and Garland, David  and quoted by the pages of the reprint)
Matravers, Derek (2001) Persons and Punishment, A850 Postgraduate Foundation Module in Philosophy, Chapter 7, pp. 232-58, Milton Keynes, The Open University
Matravers, Derek (2005) Punishment, A851 Issues in Contemporary and Political Philosophy, Chapter 7, pp. 75-81, Milton Keynes, The Open University
Duff, Antony (2008) “Legal Punishment”, The Stanford Encyclopedia of Philosophy (Fall 2008 edition), Edward N. Zalta (editor), http://plato.stanford.edu/archives/fall2008/entries/legal-punishment/