PUNISHMENT, INSTITUTIONS, AND JUSTIFICATIONS

• DOI: https://doi.org/10.1016/S1059-4337(03)30003-1
• Pages: 51-83
• Published date: 09 December 2003
• Date: 09 December 2003
• Author: Leo Zaibert

PUNISHMENT, INSTITUTIONS,

AND JUSTIFICATIONS

Leo Zaibert

ABSTRACT

The justification of punishment is an age-old debate which continues

unresolved. In late twentieth century several attempts weremade to reconcile

the two opposing justifications: retributivism and consequentialism. But

these attempts focused narrowly on merely one manifestation of punishment,

i.e.: criminal punishment carried out by the state. To the extent that these

mixed justifications are successful, they relate to only one (undoubtedly

important) manifestation of punishment. But clearly punishment can occur

in many different institutional contexts, and the institutions in each context

vary dramatically in complexity and relevance. I recommend analyzing

punishment in its manifold manifestations.

1. INTRODUCTION

The debate regarding the justification of punishment, i.e. the debate between

retributivism and consequentialism, once appeared straightforward. I do not mean

to suggest that the choices the debate forces upon us were ever easy (they have

never been); my suggestion is rather that the distinction between the opposing

alternatives was conceptually straightforward. Traditional consequentialist

justifications of punishment asserted, roughly, that punishment is justifiable only

by the (good) consequences that follow from it, whereas retributivist theories

Punishment, Politics, and Culture

Studies in Law, Politics, and Society,Volume 30, 51–83

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ISSN: 1059-4337/doi:10.1016/S1059-4337(03)30003-1

51

52 LEO ZAIBERT

asserted, roughly, that punishment is justifiable only by attending to desert. Thus,

to tell whether a justification of punishment was retributivist or consequentialist

used to be relatively easy: for example, Kant was without a doubt a retributivist,

Bentham was without a doubt a consequentialist. But recently all sorts of mixed

justifications of punishment have sprung up, supposedly coherently combining

the retributive and the consequentialist rationales.1

These mixed justifications are typically ingenious, and their study is highly

illustrative, though I think they are ultimately unsuccessful. I shall argue that

these mixed justifications do not really engage with the fundamental problem

as to the justification of punishment. Instead, they evaporate the problem by

appealing to definitional and logical considerations and by narrowly focusing

upon but one possible manifestation of the variegated phenomenon of punishment

(its manifestation within the context of political institutions).

I shall describe at the outset what I take to be the most basic phenomenology of

punishment; in so doing I shall also begin to fill-in the details as to what exactly

the thorny problem of the justification of punishment really is. My initial goal is

to show that the tension between retributivism and consequentialism arises in a

general, pre-institutional context (or at least, and in a sense to be explained in due

course, in thinly institutional contexts), and that the analysis of the justification of

punishment in this very basic context packs great theoretical potential which might

be extended to the analysis of punishment in other contexts. The second step in my

analysis deals with the shortcomings of the mixed justifications of punishment. In

the second section of the paper, I shall discuss two famous mixed justifications of

punishment which appeal to logic in order to distinguish retributivism from conse-

quentialism. Later, in the third section, I shall discuss another pair of famousmixed

justifications of punishment which while still strongly basing the distinction be-

tween retributivism and consequentialism on logic, also focus on the political insti-

tution that permit and shape (one manifestation of) punishment. There is one main

conclusion of and one main corollary to my discussion of the mixed justifications

of punishment. The main conclusion is that the mixed justifications of punishment

discussed herein ultimately fail. The main corollary is that, as a result of emphasiz-

ing logic and political institutions, proponents of these mixed justifications distort

the notion of retributivism (already a contested notion) almost beyond recognition.

Therefore, in Section 5 I endeavor to shed much needed light on the meaning of

retributivism. I shall defend the thesis that retributivism is neither a logical nor

a political thesis: it is a moral thesis – as we shall see, this claim is surprisingly

contentious. But retributivism is a narrow moral thesis, in a sense to be explained

in the last section of the paper, where I shall discuss the connection between the

retributivism/consequentialism pair in the specific realm of punishment and the

deontological/teleological pair in the realm of comprehensive moral doctrines.

Punishment, Institutions, and Justifications 53

2. THE BASIC PHENOMENOLOGY OF PUNISHMENT

AND ITS JUSTIFICATIONS

Let me begin with a methodological word of caution. The debate between

retributivism and consequentialism is not the primordial debate that could arise

regarding punishment. Both retributivists and consequentialists, unlike abolition-

ists (who think punishment is never justified – see Meinninger, 1969; Skinner,

1971), believe that punishment is sometimes justified. They simply disagree as

to why it is justified. But the debate between retributivists and consequentialists

is still, in a way, secondary, since the debaters all belong to the same group when

viewed from the vantage point of the more general debate between “punishers”

and abolitionists. Perhaps it might seem that I have nothing to say here about

abolitionism. But, given my emphasis on the existence of different manifestations

of punishment, it becomes extraordinarily difficult, if not downright absurd, to

defend abolitionism tout court. That is, in some contexts it is almost inconceivable

to imagine punishment abolished altogether.

Consider the way in which Rawls bemoans the fact that the mainstream debate

in the literature is entirely an in-house debate, amongst two camps that equally

believe that punishment is justified (retributivism and consequentialism). Rawls

wonders why so very “few have rejected punishment entirely,” given, as he puts

it, “all that can be said against it” (Rawls, 1999, p. 21). I shall, unoriginally

perhaps, continue to assume that punishment is sometimes justified; sometimes it

is justified in the form of criminal punishment carried out by the state, but without

a doubt punishment is sometimes justified in other contexts as well. Not nearly

as much as Rawls fears can really be said against every possible manifestation

of punishment. There is room, and plenty of it, to criticize punishment in specific

contexts, such as the political context, and regarding the frequently abusive

ways in which it is applied in those contexts. But there is less room to criticize

punishment tout court, in all the contexts in which it can arise.

Punishment, by definition, is an action carried out in response to something else;

it is a reaction, typically to behavior we find blameworthy.(This is of course only

part of the definition of punishment – countless things other than punishment can

also be reactions to blameworthy actions.) The grounds for the blameworthiness

are of course innumerable, and by no means are they restricted by legal or political

considerations. For millennia persons have punished each other, and whether

they have done it because good consequences were likely to ensue or because

they thought that inflicting punishment was in itself, as a matter of principle, the

right thing to do, has always been a genuinely interesting dilemma. It takes no

great perspicuity to realize that blameworthy behavior has been around probably

as long as any human behavior has been around, and that therefore, the tension