Feinberg on the classic debate

Main points

Feinberg lays out three justifications for punishment: retributivism, utilitarianism, and vengeance. He explained how these views work to justify punishment and some of the major problems that each one faces.

Retributivism

Feinberg identifies retributivism with the following points:

1. Moral guilt is a necessary condition for justified punishment
2. Moral guilt is a sufficient condition (“irrespective of the consequences”) for justified punishment.
3. The proper amount of punishment to be inflicted upon the morally guilty offender is that amount which fits, matches, or is proportionate to the moral gravity of the offense.

The necessary condition is the least controversial of the bunch. But it’s not clear that any human institution of punishment is compatible with it since punishment always harms the innocent: think of family members of the person being punished.

That said, Emily and Raphael asked about cases where there is legal guilty but not moral guilt. For example, recreational drug use is typically illegal but falls into a class of so-called victimless crimes. For that reason, some people think that it is not immoral. In this way, it illustrates the possibility that Emily and Raphael had in mind: legal guilt without moral guilt.

I can think of at least two things that a retributivist might say about that. One thing might be to say that the absence of moral guilt shows that punishment is inappropriate for these cases. The other might be to say that violating the law is itself immoral. (I assume there would have to be exceptions for excuses or justifications, e.g., “I couldn’t help it” or “the law was immoral.”)

There are significant questions about the sufficient condition. Most importantly, why should a society be committed to punish when doing so either does no good or costs the society more than it thinks it gains? Those being punished may deserve it, but why is that more important than all of the other things a society may care about?

The third point, about the amount of punishment to be given faces a variety of questions about how apportioning the punishment to the crime works.

Utilitarianism

Feinberg characterizes the utilitarian view of punishment as follows:

1. Social utility (correction, prevention, deterrence, etc.) is a necessary condition for justified punishment.
2. Social utility is a sufficient condition for justified punishment.
3. The proper amount of punishment to be inflicted upon the offender is that amount which will do the most good or the least harm to all those who will be affected by it.

The chief problem with the utilitarian view is that guilt is not a necessary condition of punishment.

There are also persistent questions about fairness. Two people may commit the same crimes but receive different treatment, depending on the circumstances their society finds itself in.

Vengeance

Retributivism looks at what those who receive punishment deserve. Vengeance looks at what those who inflict punishment get out of doing so. (And utilitarianism looks at the effects of punishment on everyone, including third parties.)

Feinberg takes the punisher’s perspective into account with the expressive theory that we will read next time. Murphy’s chapter in the textbook is also interesting.

An impure proposal

I proposed combining the necessary conditions of the retributivist and utilitarian theories while dropping the sufficient conditions. Emily and Sally went one better and proposed combining both the necessary and sufficient conditions like this:

1. Moral guilt and social utility are necessary conditions of punishment. Punishment is justified only if it is used against the guilty and punishment promotes overall utility more than any available alternative.
2. Moral guilt and social utility are sufficient conditions of punishment. Punishment is justified if it is used against the guilty and punishment promotes overall utility more than any available alternative.

Generally speaking, attempts to combine two opposed philosophical theories usually end in disaster. You either get something incoherent or you double the problems. In this case, however, things look different.

It is not incoherent because the utilitarian and retributivist views seem pretty clearly to be addressed to different questions. The retributivist is answering a moral question: when is is permissible to punish? The utilitarian is asking a political question: when does it make sense for society to devote resources to punishment?

And the combination appears to eliminate the chief problems with each view rather than adding them onto one another.

One thing we did not talk about is what the third point would look like.

3. The proper amount of punishment to be inflicted upon the offender is that amount which will do the most good or the least harm to all those who will be affected by it and that amount which fits, matches, or is proportionate to the moral gravity of the offense.

I’m not sure that is coherent. How much punishment would this be? What happens when the two conditions diverge, such that the proportionate amount of punishment would not be the one that does the most good?

Key concepts

1. The pure retributive theory
2. The pure utilitarian theory
3. The “impure” combined theory