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Justifying Legal Punishment.

This recent study, by a Yugoslavian philosopher now on the faculty of the Hebrew University, offers both a concise review of the major alternative views concerning the philosophy of punishment and a provocative sketch of a retributive theory based on Hegel's political theory. The brevity of the study necessitates that several important themes be sounded only briefly, but it also makes for a clarity and directness of argument that commend the book not only to philosophers but also to other readers who have an interest in issues of punishment but may be put off by the length and technicality of much of the philosophical literature. Even when dealing with difficult writers such as Hegel, Primoratz's exposition is lucid and helpful.

Primoratz begins by distinguishing the task he is undertaking from that of psychology, sociology, penology, and criminal law, all of which study certain aspects of punishment and its application as they affect the individual and society. The philosophy of punishment, in contrast, focuses on a single question: "What is the moral justification of inflicting the evil of punishment on people?" [7]

Two distinct actions are involved in punishment: that of the judge, in passing sentence, and that of the "executioner" or prison warden, in actually inflicting the penalty that has been handed down. The second is the enactment of the first, and it requires no additional moral justification--it would be absurd to hold the criminals ought to be sentenced but never punished. For philosophical purposes, accordingly, we can set the second act aside.

The judge's action is not an isolated act, however: it is an expression of an already existing system of stated laws and penalties. Thus the question of justification "turns out to be, in the final analysis, the question of the moral right of the state or society to punish." [8]

Primoratz considers two major philosophical theories of punishment: the utilitarian and the retributive. Under the utilitarian heading fall the "theory of deterrence," the "theory of reformation," and the "educative theory." Whereas in other accounts these have been taken as three distinct approaches to the justification of punishment, Primoratz regards them as minor variations on the utilitarian theme:

However important these differences may be from a practical point of view, when we discuss punishment as a philosophical topic we can safely set them aside. For a utilitarian sees the moral justification of punishment in its good consequences; accordingly, in each individual case of punishment, as well as when it comes to the institution of punishment, she will have to take into account all its desirable consequences.... [11]

The expressive or denunciatory account of punishment draws Primoratz's notice only briefly, in a later chapter. He regards it as a theory of punishment's function, not an alternative theory of its justification. Punishment does indeed serve to convey a community's strong disapprobation, he observes; but that fact alone does not provide its moral grounding, which must be sought elsewhere.

After providing a brief summary of the main points of the utilitarian theory, as exemplified principally by Bentham, Primoratz considers several objections: utilitarianism confuses means with ends; it neglects the demands of justice; and it would permit punishment of the innocent. Here he is on familiar philosophical ground. His discussion is valuable nonetheless for the clear and fair-minded summary of the arguments of both the critics and the defenders of utilitarianism that he provides.

The same qualities are evident in a later chapter devoted to mixed theories, the "middle way" between utilitarianism and retributivism, which has been defended in various forms by writers such as Anthony Quinton, A.C. Ewing, R.M. Hare, and, most influentially, H. L. A. Hart. Each of these mixed theories tempers the unwelcome consequences of a thoroughgoing utilitarianism by imposing a higher-order constraint. But when applied to difficult cases, Primoratz argues, none of these theories offers a consistent theory that is distinct from utilitarianism alone.

The mixed theories that have seemed most appealing to philosophical readers--those of Hare and Hart, for example--share the shortcomings of the utilitarian doctrine, including in particular its willingness to countenance exemplary punishment of the innocent. Each posits an overarching consequentialist justification for a system of punishment whose operation is retributive in character. Yet, Primoratz argues, each such theory must admit the possibility that, in some circumstances, punishment that flouts retributive requirements might contribute decisively to the attainment of the larger utilitarian goal and might therefore be not just permitted but required. Thus the mixed theories, Primoratz argues, collapse into straightforward utilitarianism.

Thus far I have described the opening and closing sections of the book but not the central chapters, in which Primoratz seeks to escape the difficulties of both utilitarian and mixed theories of punishment. In putting forward his own retributivist theory he turns to a source seldom considered seriously by political philosophers in the Anglo-American analytic tradition: the political philosophy of Hegel. With admirable economy and clarity Primoratz sets forth Hegel's social doctrine that, even while punishment curtails the subject's "formal" or "arbitrary" freedom, it is at the same time an expression and embodiment of his true or absolute freedom, which is indissolubly linked to his identity in a community. Hegel rejects the Socratic and Christian view that one ought never to return evil for evil. The evil done by a criminal demands punishment as the completion, and the formal annulment, of the original act. Laws protect and define the freedom of each by demanding others' respect for its exercise. Punishment, as a response to an act of coercion or violence, represents an indispensable element of this demand, Primoratz asserts:

The first act of coercion already contains a demand for the second and its justification. The second act of coercion annuls the first, and reaffirms the law which the first act violated. [69]

But why should the subject of punishment accept this account? To reject it--so runs Hegel's account, on Primoratz's interpretation--is to claim a special exemption for onself from the general framework of laws protecting freedom. The criminal is punished precisely in order to acknowledge his status as a person.

When an offender is punished because he has committed an offense, he is being recognized as a person, and respect is being shown to that which is distinctively human in him. ...[79]

The appropriate rule for administering punishment, according to both Hegel and Primoratz, is the lex talionis, the law that enjoins an eye for an eye and a life for a life. But this rule should not be interpreted literally--it does not mandate robbing the robber or raping the rapist. What it requires is rather "that punishment should affect the offender as much as his offense has affected the victim." [80] This standard entails more than merely a proportional scale of punishment, Primoratz insists, even if it does not dictate a single correct punishment for every offense.

It is in the explication and defense of a retributive theory on the model of Hegel's that Primoratz's study of punishment is most interesting and provocative. A long chapter is devoted to answering six distinct objections to such a theory: that it is vengeful, that it cannot be consistently applied, that it is unduly conservative, that it entails hypocrisy by disregarding social roots of crime, that it ascribes an odd and unwanted "right to be punished," and that it rules out mercy. Each argument receives its due, and yet some of the responses raise further questions about Primoratz's theory that in turn, I will argue below, are not fully resolved.

In the last chapter of the book, a sort of coda, Primoratz addresses the question of capital punishment. From the retributivist standpoint, he argues, the arguments in its favor are compelling, and the objections commonly raised are insufficient to rule out its legitimacy. All the same, he adds--as a codetta to the coda--a brief suggestion of the way in which a retributivist could consistently reject the death penalty. It would be wrong to torture torturers, Primoratz states, even though the torturer has forfeited any right against such treatment, because torture is inherently cruel and inhumane, and "we ought not to pursue justice to the full, if that means we shall have to be cruel." [168] Primoratz believes that swift and painless execution is in a different category. But "a person, or a society, could come to feel the same way about both" torture and execution. [169] If the death penalty, like torture, is felt to be cruel, then even a retributivist should call for its abolition.

This brief suggestion provides a characteristically flexible and fair-minded closing to an engaging study of the moral problems of punishment. At the same time, it reveals one of the ways in which Primoratz's moral account is more complex than it purports to be.

His retributivism is not an objective moral calculus of rights and wrongs but rather an application of broadly held social values. In this Primoratz follows, and quotes from, Hegel, [1] who allowed that "a criminal code cannot hold good for all time" but is" the child of its age and the state of civil society." [93] Thus retributivism requires punishment to adhere not to objective moral judgments of gravity but to socially accepted judgments. It would seem to follow that there is no extrasocietal or objective standard by which retributivism can judge punishments just or unjust.

Yet in response to the objection that retributivism is blindly conservative, Primoratz insists that retributivism calls for punishment for the violation only of "morally legitimate criminal laws," not of all laws. [95] This reply is introduced by reference to individuals who object to racially discriminatory laws in South Africa or to the strict rules of moral decency in Saudi Arabia or Iran. It would be unjust to punish those who violate laws that are themselves unjust, Primoratz argues. Thus retributivism need not serve merely as an instrument for the preservation of the existing social order.

To invoke the unjustness of laws, in objecting to their enforcement, is to appeal implicity to an objective standard by which apartheid and the enforcement of the sharia can be seen to be -- not merely felt to be -- unjust. Without such a standard, the charge of conservatism could not be adequately answered, and retributive punishment would serve in the end only to reinforce the dominant values of the particular society. But the nature of this objective standard, and its relationship to the broadly accepted social values that must underlie a system of punishment, are not fully explained in Primoratz's account.

An assumed objective basis is evident, too, in Primoratz's discussion of the "right to be punished" -- a peculiar right that, it seems, few wish to claim, yet whose recognition is essential to the moral case for retributivism. The argument for such a right runs as follows.[2] Few people stand up and demand that they be punished according to their deserts, and most of us would rather escape punishment if we could. Yet if our choice is between alternative modes of treatment in response to legal offenses, the right to be punished from a retributive standard is indeed one that we would wish to claim, for only a retributive system fully recognizes our freedom and responsibility. To be treated as social utility dictates, on the other hand, is to be treated merely as a means to societal ends, not as an individual whose choices must be valued and respected.

The argument for a right to be punished is a telling argument in favor of retributivism, and it rests on a moral theory of persons that gives a central role to autonomous choice. It is clear that Primoratz would endorse such a theory. It is less clear how he would relate it to the underlying Hegelian doctrine of absolute freedom and its priority over individual choice. Hegel's social theory gives much less emphasis to individual rights than have the theorists of the classical liberal tradition because, according to his theory, such rights express only a superficial sort of freedom. True freedom demands that the individual view his or her choices and actions in the context of a larger societal whole.

It is evident that Primoratz does not interpret Hegel's social theory as entailing an organicist conception of society in which individual rights are swallowed up. But it is not obvious that a Hegelian conception of freedom, which entails socially grounded interests that override individual preferences, can provide a sufficient basis for the individual freedom that is, arguably, infringed by racially discriminatory laws. If true freedom consists in voluntarily embracing the fundamental moral values of one's society, it would seem that citizens could be equally free -- and the enforcement of the laws equally just, from a Hegelian standpoint -- in a society of racial equality and in a society of strictly prescribed apartheid.

How to reconcile the strongly social character of Hegel's theory with the appeal to intrinsic rights of the individual is a matter that is not entirely resolved in this study. Is Primoratz actually putting forward a thoroughgoing retributivism, or is his position rather a mixed theory that assesses the fairness and justice of a system of punishment by a subtle synthesis of moral fit, shared social values, and underlying political ideals? To answer this question would require further explanation of the relationship among individual rights, social values, and their respective moral grounding.

All the same, the theory here advanced appears to avoid the pitfalls of the mixed theories of Hare and Hart, who seek to temper the harshness of retributivism by adding a second-tier principle that is more utilitarian in character -- and that in effect opens the door to punishment of the innocent whenever the social consequences appear sufficiently enticing. Primoratz's theory effectively blocks any such argument, for his implicit reliance on an objective standard of justice and individual rights rules out harsh treatment of one solely for others' benefit. He posits no higher moral ideal as a potential basis on which to override retributive reasons for punishment.

One might wonder, however, whether retributivism as it is here presented might not lead to unacceptable results at the other extreme, by mandating punishment in circumstances when it is needless and futile. Imagine some human society, as distant from ours in time and space as you wish, in which the empirical facts of human behavior are very different than they are today. Imagine that in this society individuals are a hundred times more resistant to being influenced by the example of punishment than they now are, but that at the same time they are a hundred times more amenable to influence through simple moral injunction. (Perhaps this society has resulted from a thousand generations of selective breeding among individuals who are morally enlightened but mule-like in their resistance to threat and intimidation--individuals just like you and me, in other words.)

Should those who violate the law be punished, in this society? A Hegelian must answer "yes": the same reasons that now warrant punishment would obtain, for offenders claim a special status for themselves that contradicts their true freedom as social beings. Yet punishment will have scarcely any effect, and, according to our hypothesis, a far greater effect would result from simple moral reproof. Thus punishment would be both needless and pointless.

The possibility of situations such as this--and of actual situations that resemble them, such as the behavior of individuals in highly structured small groups--suggests to me that retributivism is misguided if it is entirely divorced from any underlying considerations of social utility. To carry on in our imagined society just as we now do, imposing severe punishments even while knowing they will not diminish crime, seems to me both foolish and cruel. Yet Primoratz argues forcefully that to ground retributivism in reasons of utility is to open the door to other, and perhaps more troublesome, kinds of foolishness and cruelty.

Can we answer my argument by restricting our discussion to actual societies and to the facts of human motivation as we know them? We cannot say that the imaginary society of stubborn saints I have described is impossible. The empirical facts of behavior are contingent facts, and we observe wide variations among actual human societies in dispositional characteristics such as the response to threats. But it is true that the conditions I describe are highly implausible. The philosophical task that we face, we might argue, is to devise both just and workable institutions for our society, and for people as we find them, not for hypothetical people who might behave very differently.

This methodological point--the admissibility of hypothetical situations--is one that Primoratz addresses explicitly, in the context of anti-utilitarian arguments concerning punishment of the innocent. The utilitarian reply that all such arguments rely on "moral acrobatics" is inadequate, he says: "there is no good reason why we should stick to real, typical situations when critically examining ethical theories."[49] Implausible situations are possible, and ethics demands universality. By implication, Primoratz would not respond to the argument I have sketched simply by observing that we are not such people. Rather, he would need either to find retributive grounds on which we could abandon a conventional system of punishment or to argue that, whatever its futility, punishment of my imagined stubborn saints would be just all the same.

These criticisms and challenges invite further exploration, but they do not diminish the achievement or the interest of the study under review. Primoratz brings a fresh and forceful voice to the discussion of the philosophy of punishment. His treatment is particularly valuable in applying a Hegelian perspective to the issues of debate in the Anglo-American philosophical and legal communities. For undertaking that task he deserves our thanks and a large readership.


[1] G. W. F. HEGEL, PHILOSOPHY OF RIGHT 274, 140 (T.M. Knox, trans., Oxford U. Press 1965).

[2] This is an argument I have made elsewhere, drawing not on Hegelian social theory but on a theory of individual rights. Primoratz cites, in a footnote, my defense of this position on Rawlsian grounds (The Right to Punish and the Right to Be Punished, in JOHN RAWLS' THEORY OF SOCIAL JUSTICE 239-269 [H. G. Blocker and E. Smith, ed., 1980]). I have grounded the same argument in a more fully developed theory of rights in RIGHTS AND WRONGS: COERCION, PUNISHMENT AND THE STATE (1986).
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Author:Hoekema, David A.
Publication:Criminal Justice Ethics
Article Type:Book Review
Date:Jan 1, 1992
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