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:

1. punishment would do some good in the future and
2. punishment is only used against those who are guilty of crimes.

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. In effect, he took the first proposition and jettisoned the second.

Kant took the retributivist position that punishment is justified if and only if it is deserved. He relies on a version of the second proposition and does away with the first.

Feinberg lays 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.

What was on the blackboard

Here are the things I wrote on the board in class.

First, there was a list of reasons why utilitarians might think that punishment is justified. That is, these are reasons why punishing people might produce more overall good than not punishing people would. Note that most of these assume, reasonably, that crime is bad and reducing crime would be good

1. It would deter crime. Both those who are punished and those who worry they might be punished will be less likely to commit crimes than they otherwise would be.
2. It would reform people who have committed crimes so that they will be less likely to commit crimes in the future.
3. It would incapacitate those who are likely to commit crimes, preventing them from committing crimes.
4. It would make people who want to see people punished happy.

These are the summaries of the retributivist and utlitarian/consequentialist positions that I derived from Feinberg.

First, the utilitarian (or consequentialist) position.

1. The fact that punishing would produce more social utility than not punishing would is a necessary condition for punishment to be justified.

2. The fact that punishing would produce more social utility than not punishing would is a sufficient condition for punishment to be justified.

3. The amount of punishment to be inflicted on an offender is the amount that would produce the greatest balance of good over bad compared with the alternatives.

Second, the retributivist position.

1. Moral guilt is a necessary condition of justified punishment. To put it another way, only the guilty may be justifiably punished.

2. Moral guilt is a sufficient condition of justified punishment. To put it another way, the fact that someone is guilty of a crime is reason enough, regardless of any other considerations, to punish that person.

3. The amount of punishment to be inflicted on an offender is whatever would fit the moral gravity of the crime. Another way of saying that is that punishments should be proportionate to the crime.

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.