The Right to Punishment Notes for April 19–24

Main points

Morris argues that there is a right to punishment by comparing two different systems of social control: the punishment system and the therapy system.

Morris contends that we have a right to be treated as persons, that treating someone as a person involves respecting his or her choices, and that the punishment system does that while the therapy system does not.

In the punishment system, people are held responsible for their actions by being punished for doing things that are especially wrong. In this way, the punishment system displays a kind of respect for people’s choices. The criminal is treated as being responsible for having done the thing that is especially wrong.

The therapy system, by contrast, does not put much emphasis on responsibility. The goal of this system is to prevent harm, not to give people what they deserve or what they have chosen. The name “therapy” comes from the suggestion that changing or curing those who hurt others is more important than hurting them in return as punishment for what they have done.

The therapy system naturally goes along with the thought that our behavior is the result of natural or social causes over which we have little control. There’s no special need to respect a person’s choices if they are just the end product of the vast array of causes outside of the individual.

Note that the therapy system shares some of the unattractive features of utilitarianism. For instance, both seek only prevent future harm and neither pays much attention to past guilt. So they both have a relatively shallow commitment to concentrate the attention of the criminal justice system solely on the guilty.


There were a series of questions about the broader description of social rules that Morris gave before arguing for the right to punishment specifically. Morris describes social rules, including especially legal rules, as establishing a system of benefits and burdens. We all benefit from living in an organized society and we all bear the burdens of complying with the rules that make it possible. We all have to pay our taxes when we would rather not do so, for instance.

What criminals do, according to Morris, is take more benefit than others have. Specifically, they take more freedom. They violate the laws where others comply. Punishment is a way of restoring the balance.

If he had stopped there, he would have had a rationale for the institution of punishment that is independent of the considerations about choice and respect that he later introduced. As Michael pointed out, the therapy system could well be a more effective way of preserving the social balance by preventing people from upsetting the balance in the first place.

Morris, of course, wants more than a reason for having the institution of punishment. He wants to establish that individuals have a right to punishment. (I suspect he would also have some reservations about describing treatment for people before they commit crimes as punishment.)

So that’s why he did not rest with the story about the balance of benefits and burdens. He needed the points about choice and responsibility to make the case for a right to punishment as a specific way of re-balancing benefits and burdens in response to crime.

My alternative

I proposed an alternative that I claimed was consistent with Morris’s arguments but not committed to his own proposal’s odd consequences. The alternative was that the individual’s choice to commit a crime is relevant because it gives society a right (specifically, a liberty) to punish the individual that it would not otherwise have had.

Why say that? Well, if you think that a right is something that can be used by the person who holds it, a right to punishment would be odd. I can waive or trade my right to my watch. Could a criminal decide to waive his right to punishment? By contrast, it makes some sense to say that society can waive or trade punishment: that’s what prosecutorial discretion and plea bargaining are all about.

Of course, as Alex pointed out, Morris argues that the right to be treated as a person is inalienable. That means it cannot be waived or traded. (See Morris’s article, pp. 827-30).

But note that what Morris said is that the right be treated as a person, as someone responsible for his or her choices, is inalienable. My point exposes a difference between saying that someone has a right to a system of punishment and saying that someone has a right to a specific punishment.

Perhaps that’s OK for Morris. Perhaps he could say that he’s only arguing for a right to a system of punishment. Of course, such a system will have to inflict punishment in specific cases. But individuals need not have control over that in order to have a right to the system.

Treating someone as a person

What is at issue is whether there are alternatives to punishment that would involve treating someone as a person. I can think of two ways of making this case.

First, a defender of the therapy system could argue that this system treats non-criminals as persons. It only treats criminals (or, perhaps, likely criminals) as not being fully responsible. But, contrary to Morris’s suggestion in the last section, that does not commit the therapy system to reject all human rights. It simply moves the distinction between the mentally ill and the mentally sound to cover all or most criminals. It’s no more a threat to our collective human rights than the current system’s designation of some people as mentally ill is.

Second, someone might argue that Morris is mistaken about what a person is. A person is a living human being, full of human potential and vulnerability. Babies, people in comas, and the mentally ill are all persons on this view but not on Morris’s (he holds that some of them deserve protection as potential persons). If you take this view of human nature, caring can be just as important a response to persons as showing respect for their choices. And there would be nothing exceptional about treating criminals rather than punishing them. Both are ways of treating someone as a person, on this view of what a person is.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2007.
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