The most prominent political philosophers of the seventeenth century, such as Hugo Grotius, Thomas Hobbes, and John Locke, all thought that punishment was justified only if two conditions were met: punishment would do some good in the future and the person being punished was guilty of a crime.
Bentham and Kant split those two propositions apart. Bentham articulated the utilitarian (or “consequentialist”) view that punishment is justified if and only if it brings about the best consequences. Kant took the retributivist position that punishment is justified if and only if someone deserves it.
Feinberg laid out the central propositions for both views and some of the major problems with each.
The chief problem with consequentialism is that it is willing to punish the innocent. The chief problem with retributivism is that it is committed to punishing even when doing so has prohibitive costs or does no good.
The obvious solution is to recreate the seventeenth-century mixture: require both guilt and desirable consequences. That is what Hart will try to do in the reading for Thursday and what Goldman will criticize in the article we will discuss next week.
One thing to keep in mind is that mixed views do not solve all of the problems with the utilitarian approach. In particular, the requirement that punishment bring about desirable consequences could mean that people receive different punishments for the same crime. That will strike many people as unfair.
In discussing Feinberg, I said that one problem with retributivism is that it seems to be impossible to fulfill its necessary condition that only the guilty may be punished.
The reason is that we know that punishment hurts innocent members of the criminal’s family and community.
Here is an example of one thing that I have in mind. It is a summary of research on the effects that punishing a parent has on children.
Today, about one-in-31 adults are in prison. This is a human rights crisis for the people that are incarcerated, but its impact also echoes through the job sector, communities, families, and the hearts of children. One-in-28 school-age children—2.7 million—have a parent in prison. In a new book, Children of the Prison Boom, sociologists Christopher Wildeman and Sara Wakefield describe the impact of parental imprisonment on children: an increase in poverty, homelessness, depression, anxiety, learning disorders, behavioral problems, and interpersonal aggression. Some argue that taking parents who have committed a crime out of the family might be good for children, but the data is in. It’s not.
Adrián said that one way out of this would be to say that it is the criminal who brings the harm on the family, not the state. I think that is a promising way of showing how the retributivist position might be internally consistent.
Of course, it is still open to utilitarians to say that the benefit of punishment isn’t worth this cost. That is a separate point that is also substantiated by this kind of research.
Bentham, Jeremy. (1789) 1993. An Introduction to the Principles of Morals and Legislation. Edited by Mark C. Rooks. British Philosophy: 1600-1900. Charlottesville, VA: InteLex Corporation.
Feinberg, Joel. 2010. “The Classic Debate.” In Philosophy of Law, edited by Joel Feinberg, Jules Coleman, and Christopher Kutz, 9th ed., 766–71. Belmont, CA: Wadsworth.
Kant, Immanuel. 1991. The Metaphysics of Morals. Translated by Mary Gregor. Cambridge: Cambridge University Press.