Every society punishes. Yet punishment is a strange thing for a community to do on purpose. Locking a person in a room for years, taking their money, or in some places taking their life would be grave wrongs if a private person did them. When the state does them as punishment, we usually call them justice. This course asks what makes the difference, and whether the difference always holds.
Defining punishment
Philosophers often use a definition associated with H. L. A. Hart. In paraphrase, punishment:
- involves something normally considered unpleasant, such as a fine, loss of liberty or loss of privileges;
- is imposed for an offense against rules;
- is imposed on the actual or supposed offender;
- is intentionally administered by people other than the offender;
- is imposed by an authority within the system whose rules were broken.
This definition helps separate punishment from things that resemble it. Compensation also burdens a wrongdoer, but its aim is to repair the victim's loss, not to impose a penalty. Quarantine restricts liberty, but it is not punishment because there is no offense: the sick person did nothing wrong. Revenge may follow an offense, but it is carried out by a private person, not an authority.
The philosopher Joel Feinberg added that punishment has an expressive function: it communicates society's condemnation of the act. A parking fee and a parking fine may cost the same, but only the fine says, “you did wrong.”
Why justification is needed
Punishment needs justifying for several reasons. It deliberately causes suffering. It is imposed by the most powerful institution in society on people who often have little power. It affects others besides the offender, such as children and partners. It is costly. And it can be imposed by mistake on innocent people. Any honest account must explain why these burdens are worth it, and what limits should apply.
The question is sharper still for anyone who treats preserving life and avoiding harm as basic values. If deliberately harming a person is normally wrong, then every harm the state imposes in the name of justice needs a reason strong enough to override that presumption, and a limit on how far that reason reaches.
Two families of answers
The main theories fall into two families.
- Backward-looking theories, chiefly retributivism, justify punishment by what the offender did: wrongdoers deserve to be punished. Level 2 examines this view.
- Forward-looking theories, chiefly consequentialist ones, justify punishment by the good it will do, such as preventing future crime through deterrence, incapacitation or rehabilitation. Level 3 examines these.
Many thinkers combine the two. Hart proposed a mixed theory. He distinguished the general aim of having a system of punishment at all, which he thought was reducing crime, from the principles of distribution that decide who may be punished and how much, where he thought desert sets firm limits: only offenders may be punished, and not more than their offense warrants. Later levels add a third approach, restorative justice, which asks what repair the harm requires.
A note on approach
People feel strongly about crime, often because they or someone close to them has been hurt. This course treats victims' suffering, public safety and the dignity of offenders as serious concerns, and it presents each view as its strongest defenders would before noting fair criticisms.
Worked example: is it punishment?
Test the definition from this level on five cases from an invented town.
- A court fines Lena for shoplifting. Something unwelcome, for an offense, imposed on the offender, by an authority. This is punishment.
- A court orders Omar to pay for the fence he damaged while driving carelessly. Omar bears a burden, but its aim is to restore the neighbor's loss. This is compensation, not punishment, though in practice the two often go together.
- Health officials require Priya, who has a dangerous infectious disease, to stay home for two weeks. Her liberty is restricted, but she committed no offense. This is quarantine.
- A shop owner's brother beats up the boy he believes robbed the shop. This follows an alleged offense, but it is carried out by a private person, not an authority. It is revenge, and itself a crime.
- A town charges three dollars an hour for parking downtown. The fee is unwelcome, but no one has done wrong by parking. A fine for overstaying, by contrast, expresses condemnation of breaking the rule.
Now ask why the fine on Lena is justified. A retributivist answers that she knowingly took what was not hers and deserves a penalty in proportion to the wrong. A consequentialist answers that fines discourage shoplifting by Lena and by others, protecting shopkeepers. Hart's mixed view combines them: the system of fines exists to reduce theft, but Lena may be fined only because she actually stole, and only by an amount fitting a small theft. Notice how the same simple case already raises the questions the rest of the course explores.