Philosophy of Law Fall 2019

Retributivism and Consequentialism

Overview

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 it is deserved.

Feinberg laid out the central propositions for both views and some of the major problems with each.

Problems and impure solutions

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 we will discuss next time.

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.

Can the retributivist’s necessary condition ever be met?

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.

Strictly speaking, the state is only punishing the criminal and incidentally hurting the family members. So the point isn’t that you can’t avoid punishing the innocent. It’s just that it’s very hard to come up with a system of punishment that only harms the guilty.

This sort of point is an internal problem for retributivism: it says that the state should only punish the guilty, but in doing so it inevitably harms the innocent and that has the feeling of inconsistency to it. The utilitarians make an entirely separate point when they say that, at some point, punishing even the guilty isn’t worth the cost.

Main points

These are the things you should know or have an opinion about from today’s class.

  1. What the utilitarian (or “consequentialist”) approach to punishment is: when would punishment be justified or not justified on this view?
  2. The retributivist approach to punishment: when would punishment be justified or not justified on this view?
  3. The chief problems with each view.

References

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.