The jurisprudence of punishment.

• Author: Huigens, Kyron

INTRODUCTION

Does a complete punishment theory require a particular theory of legality, that is, a theory of what makes a valid legal rule valid? I suspect that most punishment theorists' initial response to this question will be contradictory. On one hand, it seems obvious that a theory of punishment, if it is a theory of legal punishment, must assume some account of legality. It seems equally clear which theory of punishment matches which school of jurisprudence. We assume that an aretaic theory is necessarily part of a natural law jurisprudence or that a consequentialist punishment theory is tied somehow to legal positivism. Fewer observers would make a connection between Dworkinian jurisprudence and deontological punishment theory, but a shared emphasis on moral principle and right answers in hard cases makes it easy to draw an equally plausible connection there. On the other hand, if, as this answer assumes, we think of punishment theories as subdivisions of the great traditions in moral philosophy, then this answer must be wrong. Moral philosophy is orthogonal to jurisprudence as the plausible but entirely specious connection between Dworkin and Kant indicates--and if this is so, then there is no necessary connection between any particular jurisprudence and any particular theory of punishment.

The fact that a theory of punishment does not require a theory of legality is trivial. To say, for example, that an aretaic theory of punishment can be reconciled with legal positivism means no more than to say that an aretaic theory of punishment can be reconciled with an interpretation of the gnostic gospels or a reading of Dr. Seuss. For the advocate of a punishment theory, however, establishing this trivial point is not itself trivial. For many of those interested in punishment theory, the point will in fact be a revelation. It is difficult to say how widespread this confusion is, but it seems sufficiently widespread to merit attention and correction. It matters to the field of punishment theory if a consequentialist in punishment theory dismisses natural law jurisprudence out of hand, particularly if she then uses that dismissal as a reason to reject an aretaic theory of punishment as well. To see that punishment theory and jurisprudence are orthogonal to one another would have the effect of removing this large and entirely illusory constraint on the development of punishment theory.

The difficulty is that it is not clear that jurisprudence and punishment theory really are orthogonal to one another. For one thing, the presumed subordination of punishment theory to moral theory is false. The moral justification of punishment is only one of the standing questions that a theory of punishment addresses, if it is meant to be a comprehensive theory of punishment. And most of these other questions are not questions in moral theory. Instead, most questions in punishment theory concern the description of criminal law: What is the difference between a defense in the nature of justification and a defense denying responsibility for wrongdoing? Is culpability or, the term preferred here, criminal fault part of the structure of wrongdoing? If so, does fault apply per offense or per element? Does the term "excuse" refer to denials of responsibility, to the absence of fault, or to both? Where does duress or provocation fall in these categories?

Given punishment theory's large descriptive component, we might begin to think that descriptive jurisprudence is not orthogonal to punishment theory at all. It is true that the two disciplines as ordinarily conducted have little or nothing to do with one another. Jurisprudence is focused exclusively on explaining the validity of legal norms, whereas the descriptive questions with which punishment theory is concerned ordinarily do not include the question of legal validity. On the other hand, there is no reason to assume that punishment theory is not sensitive to differing conceptions of legal validity--as the intuition behind the first answer to the opening question of this Essay indicates.

This Essay addresses the relationship between punishment theory and jurisprudence, and argues for the idea that jurisprudence and punishment theory are orthogonal to one another. Part I of this Essay, following this Introduction, will move punishment theory closer to jurisprudence, first by describing the overbearing role of moral philosophy in punishment theory as it is ordinarily conducted, and then by separating and highlighting the features of punishment theory that are descriptive and more concerned with legality. Part II of this Essay will continue in the same vein, beginning to treat the theory of punishment as legal theory instead of moral theory. I will describe the four major schools of jurisprudence and sketch their accounts--some actual, some projected---of criminal fault. The question is what would count as an acceptable account of criminal fault--legal fault within a system of legal punishment--under each school's conception of what counts as law? Behind this lies the question whether jurisprudence is completely orthogonal to punishment theory. Criminal fault is usually interpreted as a straightforward matter of moral desert for punishment. (1) If this conception does not run afoul of any conception of the relationship of law to morality, then this is a strong sign that jurisprudence places no constraints on punishment theory at all. We can return to the clarifying, simplifying idea that punishment theory and jurisprudence are orthogonal to one another.

The effort to reconcile punishment theory with jurisprudence across the board seems doomed, however, where an Aristotelian or aretaic theory of punishment is concerned. The idea that virtue plays a central role in criminal liability is most often and quite understandably thought of as a feature of a natural law jurisprudence. An aretaic theory of punishment seems to be inconsistent on its face with a positivist jurisprudence, if one interprets the absence of virtue as a condition of just punishment and positivism as excluding such moral concepts from the criteria of legal validity. But there is no reason to assume that positivism excludes moral concepts from the criteria of legal validity. And even if it did, there would be no conflict if an aretaic theory of punishment did not treat the absence of virtue as a necessary or sufficient condition for criminal liability. Parts III and IV of this Essay will pursue this point. I will offer a distinctively aretaic account of criminal fault. I will then offer an account of desert for legal punishment as legal desert, exclusive of moral desert--an account that mimics a central argument of exclusive legal positivism. These two different accounts of fault, we will see, are perfectly consistent with one another--a point which should conclusively dispel any notion that an aretaic theory of punishment is a creature of natural law jurisprudence.

1. DESERT FOR PUNISHMENT AND THE SCAPEGOATING OBJECTION

   It would be difficult to describe in a paper of any length how punishment theory is ordinarily conducted. Here, I will only put forward an instance of ordinary punishment theory, and proceed on the assumption that it is reasonably representative. It is an argument about desert for punishment--which, aside from the justification of punishment, is the main issue in the field--and it indicates the preoccupations of ordinary punishment theory. This argument is a staple of criminal law classrooms, but upon closer examination one begins to wonder why. It has nothing in particular to do with law--which is the very feature that makes it representative.

   The "scapegoating objection" is aimed particularly at consequentialist theories of punishment. To quote one statement of the objection:

   [T]he utilitarian must hold that we are justified in inflicting pain always and only in order to prevent worse pain or bring about greater happiness. This, then, is all we need consider in so-called punishment, which must be purely preventive. But if some kind of very cruel crime becomes common, and none of the criminals can be caught, it might be highly expedient, as an example, to hang an innocent man, if a charge against him could be so framed that he were universally thought guilty; indeed this would only fail to be an ideal instance of utilitarian "punishment" because the victim himself would not have been so likely as a real felon to commit such a crime in the future; in all other respects it would be perfectly deterrent and therefore felicific. (2) It is never quite clear, however, what this objection means. This version of the objection is the one that John Rawls quoted in Two Concepts of Rules, and he understood the point to be this: 'The question is whether utilitarian arguments may be found to justify institutions ... such as one would find cruel and arbitrary." (3) But why should we care whether utilitarian arguments would justify cruel and arbitrary punishments?

   An answer to this question might be found in Rawls's plausible argument against the scapegoating objection. (4) It may be that conditioning punishment on individual desert produces optimal social welfare, simply because most people believe, rationally or not, that this is how punishment should be done, and because they would withhold necessary political support for the legal system if it were done otherwise. If punishment according to desert is not cruel and arbitrary, then a consequentialist theory of punishment would not necessarily endorse cruel and arbitrary punishment in the pursuit of optimal social welfare. For my present purposes, however, it is irrelevant whether or not the scapegoating objection fails, and whether or not consequentialist punishment theory is right. I want to focus on why and how the scapegoating objection purports to show a consequentialist theory to be mistaken, whether it successfully does so or not. On this point...