Philosophy of Law Fall 2019

Hart’s Combined Theory


Mixed theories of punishment hold that punishment is justified only if two conditions are met:

  1. It has desirable consequences, such as the deterrence of crime.
  2. It is inflicted only on those who are guilty of violating the law.

(“Only if” means these are necessary conditions of punishment’s being justified. What that means is that punishment is not justified if one of the conditions is not met.)

Bentham and Kant offer pure theories that rely only on either the desirable consequences of punishment or retribution for wrongdoing, respectively. The problem with each one is the sufficient condition for punishment.

Utilitarians like Bentham have to say that the desirable consequences of punishment are sufficient to show that it is justified (permitted, just, acceptable, etc.). That is a problem because punishing the innocent could have desirable consequences and so would be justified, according to the utilitarian’s proposed sufficient condition.

Kant’s idea that guilt is a sufficient reason for punishment also gives rise to trouble. There can be good reasons for deciding not to punish some guilty people: there might be terrible social consequences of punishing them or there might be other ways of spending social resources that have better consequences. But Kant maintains that it would be unjust for the guilty not to get what they deserve and so he is indifferent to these considerations.

Hart has a clever way of understanding the two conditions listed above. He sees them as answers to different questions about punishment. In his opinion, the utilitarians have the correct way of answering a question about what he calls the general justifying aim of punishment while the retributivists have the right answer to what he calls questions about the distribution of punishment.

Nazis on page 12

We spent some time talking about the paragraph on the top of p. 12 because it is very hard to understand. Here is what Hart wrote:

“Similarly the moral importance of the restriction of punishment to the offender cannot be explained as merely a consequence of the principle that the General Justifying Aim is Retribution for immorality involved in breaking the law. Retribution in the Distribution of punishment has a value quite independent of Retribution as Justifying Aim. This is shown by the fact that we attach importance to the restrictive principle that only offenders may be punished even where breach of this law might not be thought immoral: indeed even where the laws themselves are hideously immoral as in Nazi Germany, e.g., forbidding activities (helping the sick or destitute of some racial group) which might be thought morally obligatory, the absence of the principle restricting punishment to the offender would be a further special iniquity; whereas admission of this principle would represent some residual respect for justice though in the administration of morally bad laws.” (Hart 1959, 12)

As I understand it, Hart is saying that the retributivist’s answer to the question about the distribution of punishment is independent of the retributivist’s answer to the question about the general justifying aim of punishment.

In the case at hand, if the general aim of punishment is that those who are guilty of moral wrongs should suffer, then the state should not punish anyone who violates these laws. That is because people who violate the law do not do anything morally wrong.

What about someone who complies with the law? On first glance, you would think that a retributivist would say that such a person should be punished. Refusing to help a sick person just because they belong to a particular racial group is a wicked thing to do, after all. However, most retributivists do not say this. They say that you should not punish people who do not violate the law.

That shows that they acknowledge there are two questions: one about the general justifying aim of punishment and one about its distribution. Their answer to the question about the general justifying aim of punishment is that the morally bad should be punished. Their answer to the question about the distribution of punishment is that only those who violate the law should be punished. If there was only one question, “why is punishment justified?,” then they would favor punishing the person who wickedly obeyed the law.

Thanks to Sarah and others for pushing me to say that clearly. I think I might finally have it!

In any event, the purpose of that paragraph is to show that we distinguish between the two questions, about justifying aims and distribution. It isn’t really necessary, as the rest of the article makes the same point. It aims to show that the excuses commonly recognized in the law cannot all be derived from the utilitarian answer to the question about the general justifying aim of punishment. Assuming that the utilitarian answer to the question about the general justifying aim of punishment is basically correct, that must mean that we are asking a different question about punishment when we ask whether someone has an excuse. In other words, the rest of the article implicitly makes the point that we distinguish between the two questions Hart identifies. So he didn’t really need the confusing paragraph on page 12.


The bulk of the article is taken up with a discussion of justifications, excuses, and mitigating factors. These are all reasons recognized in the law for not punishing those who have done things that are normally punished.

Hart thinks that justifications can be derived from the general justifying aim of punishment. Self-defense is a justification for an action that would normally be a crime. The idea is that we don’t punish someone who has a justification because the justification shows that the action in question serves the overarching aim of the law. Killing in self-defense, for example, serves the aim of safety which is, arguably, the purpose of the law.

Excuses, by contrast, cannot be derived from the general justifying aim of the law. Excuses are conditions that show that someone had special difficulty in complying with the law: mental incapacity, say, or ignorance of what one was doing. They are relevant to the distribution of punishment: we excuse those who are mentally incompetent or who act in ignorance, even though what they did was wrong.

Hart said that Bentham’s attempt to give a utilitarian rationale for excuses was a failure: there could be good utilitarian reasons to punish people who are normally excused, such as the mentally incompetent. (Caroline got there first, I should add.) According to Hart, the most that Bentham shows is that it would be pointless to threaten people with punishment who have excuses such as “I was just a child,” “I was insane,” or “it was an accident and so not in my control.” The threat of punishment cannot deter accidents, people who do not understand it, or people who cannot control their behavior. But punishment itself might deter crime anyway: people who are capable of controlling their behavior will be more careful if they know they could not make a case for being excused. Hart concluded that the reason for excuses must be based on principles of justice that have nothing to do with producing good consequences.

Maddie and I came up with a neat slogan to remember this. Hart thinks the general justifying aim of punishment is forward looking: it concerns what good will come from punishment in the future, such as a lower crime rate and greater public safety. By contrast, we settle questions about the distribution of punishment by looking backwards to facts about what happened. For instance, we only punish those who committed a crime. And we excuse those who were not mentally competent at the time the crime was committed.

Hart could have rested content with saying that it is simply unjust to punish people like this. But he went further than that and offered some reasons explaining why this is so and expanding on the value of distributing punishment on retributivist grounds. He claimed that it would only be fair for society to enforce its laws if people have the opportunity to avoid punishment; this is possible only if punishment is limited to voluntary actions by the mentally competent. He also argued that this way of distributing punishment makes sense for societies that place a high value on individual freedom (see Hart 1959, 21–22).

Key concepts

  1. The difference between the general justifying aim of punishment and the distribution of punishment.
  2. Hart’s criticism of utilitarians on excuses.


Hart, H. L. A. 1959. “Prolegomenon to the Principles of Punishment.” Proceedings of the Aristotelian Society, New series, 60: 1–26.