Justification of Punishment!
Jitendra Nath Sarker
Regarding the justification of punishment philosophers are not of the same opinion. According to the utilitarian moral thinkers punishment can be justified solely by its consequences. That is to say, according to the utilitarian account of punishment 'A ought to be punished' means that A has done an act harmful to people and it needs to be prevented by punishment or the threat of it. So, it will be useful to punish A. Deontologists like Mabbott, Ewing and Hawkins, on the other hand, believe that punishment is justifiable purely on retributive grounds. That is to say, according to them, only the past fact that a man has committed a crime is sufficient enough to justify the punishment inflicted on him. But D.D. Raphael is found to reconcile between the two opposite views. According to him, a punishment is justified when it is both useful and deserved. However, all of them are at least of the same opinion that punishment is justifiable. But it is Maclagan who alone, so far I know, differs from them. According to him punishment is not morally permissible. In other words, punishment is not justifiable in the sense that it is not right to punish an offender.
I myself also want to say that punishment is not justifiable but not in the sense in which it is so claimed by Maclagan. I like to say that the question of justification of punishment does not arise at all. "Can punishment be justified?" - the question itself is meaningless. It is as absurd as to ask, "Does virtue run fast?" (1) The aim of this paper is to prove the absurdity of the enquiry as to whether punishment can be justified. I am almost sure that this enterprise must arouse suspicion and vexatious reaction among my readers. Nevertheless, I expect it to be convincing to most of them at the end.
The philosophers whom I mentioned above, however, use the word justification in the sense in which it can hardly be distinguished from evaluation. This sense of the term what I like to call the traditional sense. In this sense, to justify an act is to say that it is good or right. I like to differ from this traditional use of the term and I want to say that it is absurd to ask for justification of anything else unless it is an assertion.
Maclagan says, "To ask whether punishment can be justified on retributive grounds is as absurd as to ask whether the reason lead weighs more than linseed is that it is heavier". (2) He opposes not only the retributive grounds of justification; he excludes utilitarian grounds too. He denies, in short, the justification of punishment altogether. Against the retributive justification of punishment Maclagan holds the view that backward reference cannot justify punishment. It is rather required to explain what punishment is, or what it is that constitutes punishment. "Punishment consists", he says, "in pain deliberately inflicted as a retort to some wrongful act done by the person on whom it is inflicted". (3) To make it more clear he writes again, "The retributive infliction of pain and only the retributive infliction of pain constitutes punishment". (4) According to him, we are to look back not to justify but either to punish or to reward the agent. But he makes us aware that "we have a duty not to act retributively towards the guilty person, yet he has no right to protest against our so doing" (5)
D.D. Raphael agrees with Maclagan in the view that a guilty person forfeits his claim not to be pained. He says," Where the individual has been guilty of deliberate wrong doing,........... his claim not to be pained is thought to be removed". (6) Like Maclagan Raphael refuses the necessary connection between human conduct and desert. According to him, a guilty person need not be punished necessarily. His offence simply forfeits his right not to be pained. Infliction of pain is permissible only if it is deserved. But this does not give rise to an obligation to hurt the guilty man. An obligation to punish arises from its social utility.
The relevant points of difference between Raphael and Maclagan
According to Maclagan the guilty person forfeits his claim not be treated as a means to social good; nevertheless other persons are morally obliged to treat him as an end. That is to say, it is not morally right to punish a guilty man. Professor Maclagan expects the moral agent to be an ideal moral agent. While Mr. Raphael admits the social utility of punishing the wrongdoer. So, he says, "The infliction of punishment is a matter for the state, not the individual........ The state exists to safeguard the claims of its citizens who might be harmed by the guilty". (7) According to both Raphael and Maclagan justice lays no obligation on others to punish the wrongdoer. But punishment, to Raphael, is morally permissible; while to Maclagan it is not so. It is rather not justifiable in the sense that it is never right to punish an offender. While, Raphael thinks it to be justified on utilitarian grounds. Regarding the degrees of guilt or of penalty they also differ from each other. According to Maclagan there is no degree of guilt or of punishment. While, Raphael proposes that the degree of punishment should be equal to the degree to which an offender infringes the right of another person. So, according to him degree can easily be assigned to guilt.
Now I shall take a new attempt to prove that the justification (in the traditional sense `of the term) of punishment on retributive ground is illusory - not a real one. In order to prove the futility of retributive justification the term 'punishment' needs to be distinguished from mere infliction of pain. Infliction of pain on an innocent man, whatever good consequences it yields, cannot be termed as punishment. Nevertheless one can no doubt ask for its justification if he does not know whether the man suffered is really guilty. But if he is a retributionist and knows that the man on whom the pain is administered, is not really guilty then he (the retributionist) cannot legitimately ask for its justification. For, he himself knows that such infliction of pain is unjust. Again if he knows that a particular pain is inflicted on a man for doing something wrong then it is also illegitimate to say that he will ask for its justification. But he may try to justify it to another man who does not know whether the man pained is guilty. Then what does the term 'justification' mean here on retributionist account? Does it not mean, to justify is to show that the man pained is guilty? If so, then justification of inflicting pain may at best be asked for. But the question of justification of a punishment does not arise at all. For, by the very definition it can be explicitly known whether an infliction of pain be termed as punishment. If one knows certain imposition of pain to be punishment then he need not ask for its justification. Because, unless he knows that it is imposed on a guilty man for his wrongful act, he cannot call it punishment. The questions like 'Can punishment be justified?' and 'How can it be justified?' are therefore, meaningless at least on retributive grounds.
In this context it is to he noted that the term punishment may be understood in two different senses (i) Punishment in general and (ii) specific case of punishment . In the general sense of the term it is a class of actions, not a particular action. In this sense not only the actual infliction of pains are considered; both actual and possible infliction of pains on wrongful acts are taken into consideration. While in its specific sense, the term punishment is used to mean an actual infliction of suffering. It is a particular action --- not a class of actions.
Punishment in general can obviously be justified (in the traditional sense of the term) on utilitarian grounds. But usually its justification is not asked for. Because justification of punishment, in general is unnecessary. It is the justification of particular infliction of pain (or punishment) that can be enquired of. As a man can legitimately ask for justification of a particular law of a state. But nobody enquires of the justification of legal system or of law in general. It is meaningful to ask, 'Can this rule be justified? 'Or 'Are not those laws justifiable?' But it is not worthwhile rather it is absurd to ask "Can law (in general) be justified?" Similarly, punishment in general or penal system requires no justification. It would not be absurd to ask for justification of penal system if there would have been any alternative means to discourage criminal conduct. But a possible alternative means rather encourages criminal activities. It is illustrated by Fitzgerald when he says, "The best cure for a man who persists in driving away cars without the owner's consent might well be to provide him with a car of his own at state expense. This might positively encourage others to follow his example" (8)
Social code or laws of a state are formulated in order to satisfy social need or to secure general interest of a society. Obligation to protect laws arises as soon as they are formulated. Transgression of a law is an offence. For, it is detrimental to social peace. In order to protect the laws and thereby to maintain social peace penal code is inevitable. It is the penal code that satisfies the need and purpose of a state for which the code itself is introduced and punishment is administered. "To secure respect for this code", says Maclagan, "penalties are attached to the breach of it". (9) Punishment in general is, therefor, self-evidently justified; it requires no further justification.
It is to be noted that in my long discussion, the term 'justification' is used in its traditional sense. It is the proper time, I think, to explain why it is absurd to enqire as to whether punishment can be justified. But to do that we must know the proper implications of the term 'justification'. In its traditional use the term 'justification; has been identified with 'evaluation'. It is evident when Israel Scheffler says, "To say of some act that it is right, warranted or valid, is to say that it is justified. To predicate goodness of something is to hold its approval justified". (10)
But I like to say, to say of some act that it is right, or wrong; valid or invalid; good or bad, is to evaluate it. This is obviously evaluation. To predicate simply goodness or rightness or validity, excluding the opposites, of something is to approve it. This is also an evaluation --- not justification. To justify something is to say that why it is said to be good or bad, just or unjust. To justify x, is not to say of x that it is right but to show that x is right. What we evaluate is to justify. Evaluation and justification are two different things. Such a distinction is clearly pointed out by Hodgson. He also holds that to justify is to 'show' (11) justness or rightness. An action may be judged or evaluated either to be right or wrong but pronouncement of judgement will be made after testing it and finding it in accordance with "appropriate rational criteria". (12) Justification is, therefore, a process of showing the rightness of an act but not to say that it is right.
Moral justification is required for the assertion made on the object of moral judgement. Moral justification meets the why-questions. For instance, 'Why is an action right or wrong?' To meet this why-question, one who justifies is to put forth reason for which moral judgement is made. Moral justification, therefore, involves reasoning. According to J. Hartland-Swann, reference to certain factors as reason is required for the justification of moral judgement. Justification depends on a number of variable factors that may be offered "as a reason in the form of because-clause". (13) It is needless to say, that Mr. Hartland's because-clause and what I call why-question are used to mean the same thing.
Even Raphael writes, "The statement that a man deserves punishment is justified by the fact that he has deliberately acted contrary to duty". (14) Raphael's statement is not linguistically sound. For, punishment is a deserved pain. If so, then 'a man deserves punishment' means 'a man deserves deserved pain. The statement sounds odd. Moreover, the statement, 'a man deserves punishment' is an evaluation of the man's action. It is an evaluative statement which makes an assertion, and this assertion cannot be justified by the act (deliberate transgression of duty) itself. In such a so-called justification simply the act is stated. Deliberate transgression of duty is the act on which the evaluative statement 'a man deserves punishment' is pronounced. Simply the description or statement of the man's action cannot meet the requirement of justification. Because, to justify is to show the reason, why the act ' contrary to duty' is punishable. So, the statement, 'a man deserves punishment' cannot be justified by the fact that he has deliberately acted contrary to duty. However, a glimpse of the truth is revealed in the quoted statement of Raphael. In this statement he admitted the fact that it is not punishment, rather the statement concerning punishment is asked for its being justified.
Infliction of punishment is an action or a class of actions. We evaluate such an action in terms of either the consequences it yields or the intention of the agent who inflicts punishment. A particular infliction of pain may be evaluated either as just or unjust, right or wrong. But it is quite absurd to ask for its justification. Because, it is told earlier that to justify is to show reason. That is to say, to justify a statement as true is to show that why it is true. And it is only a statement or an assertion what involves reason. In other words, there must have some reason behind what a man says or asserts (provided he is not a mad). While it is not reason but aim or purpose or intention an agent may have in his mind to do an act. An action can be evaluated and it is an evaluation what we justify. Punishment is a kind of action. We can evaluate it as just or unjust. And such an evaluation can be justified. So, it is not punishment, rather statements concerning punishment what we can justify.
(1) I owe to Pro. J.J.C. Smart. For, the idea of such a meaningless question is borrowed from his article ' The existence of God, Published in the 'New essays in Philosophical Theology; A. Flew and A. MacIntyre, SCM press, 1972, P.28.
(2) Punishment and Retribution, Philosophy, July, 1939, P. 282.
(3) Ibid, P. 281
(4) Ibid, 283.
(5) Ibid, p.296
(6) Moral Judgement, Allen and Unwin, London, 1955, p.72.
(7) Ibid, P. 74.
(8) Criminal Law and punishment, Oxford University Press, London,.1962,P. 200.
(9) Punishment and Retribution, Philosophy, July, 1939.
(10) "On Justification and Commitment". The Journal of Philosophy; 1954, P.180.
(11) Consequences of Utilitarianism, Oxford University Press, 1967; p; 82
(12) Ibid, P.82.
(13) John Hartlamd-Swann, An Analysis of Morals, George Allen and Unwin; London, 1960; P.36.
(14) 'Moral Judgement', Allen and Unwin, London, 1955;P.68.