The Paradox of Punishment

• Pages: 87-108
• DOI: https://doi.org/10.1016/S1059-4337(05)37004-9
• Date: 15 December 2005
• Published date: 15 December 2005
• Author: Wendy C. Hamblet

THE PARADOX OF PUNISHMENT

Wendy C. Hamblet

ABSTRACT

Notions of justice and punishment seem inextricably entwined in the old-

est conceptual traditions of the West. Changing notions of just state

responses to citizen crime can tell us much about the culture and the

politics of a given society. Yet, often those notions are radically contra-

dictory, mutually exclusive, and/or counterproductive of the goals they

seek, together, to achieve in the society.This paper traces a genealogy of

punishment rituals practiced in the United States and maps the relation-

ship of reigning ideas of just recompense onto transforming political and

cultural realities. This paper highlights the multiple paradoxes that have

arisen in the U.S. in the attempt to visualize and realize appropriate and

just punishment practices in the state.

Bring me back in shackles,

Hang me long out in the sun,

Exonerate me, forget about me

I recommend measures for ending it. (The Tragically Hip)

While society in the United States gives the example of the most extended liberty, the

prisons of the same country offer the spectacle of the most complete despotism.

(G. Beaumont, de Tocqueville, 1833, p. 47)

Crime and Punishment: Perspectives from the Humanities

Studies in Law, Politics, and Society, Volume 37, 87–108

Copyright r2005 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37004-9

87

In Discipline and Punish, Michel Foucault traces a genealogy of state pun-

ishments from medieval public spectacles of torture, mutilations, humilia-

tions, and bodily dismemberment through to recent methods of castigation

of social offenders thought to be ‘‘more civilized’’ – like penalization, lethal

injection, and electrocution (Foucault, 1995, pp. 3–35). That history reflects

evolving public and political attitudes toward criminality and ‘‘just punish-

ment’’ and maps out the constantly renegotiated boundaries that exist be-

tween citizen freedom of action and the power of ‘‘legitimate’’ authority

over citizen freedom. Changing attitudes about what constitutes ‘‘just pun-

ishment’’ issues in shifting state laws and judicial interpretations and en-

actments of the laws, as well as shifts in the established scale of judicial

consequences for transgressions of those negotiated boundaries. Foucault’s

genealogy of discipline and punishment charts evolving public notions of

legitimacy and criminality and the decree to which these notions intersect in

the public mind.

THE JUST VIOLENCE OF STATE PUNISHMENTS

The notion of ‘‘just punishment’’ has presented a discomfiting paradox to

philosophers from earliest times since the assertion of punishment as just

presents a compelling challenge in ethical reasoning. Popular belief holds

that the ‘‘legitimate’’ punishments of the state serve many benefits. People

remain, in general, firm believers in the efficaciousness of punishment of its

criminal element at the hands of state authorities. To employ a Platonic

distinction (Republic 2.357b), punishment remains seen as a good-in-itself

(en autos) as well as a good-for-the-sake-of (per allos), whatever evidence

arises to refute the prejudice that punishment is a good thing.

The notion of ‘‘just punishment’’ presents a challenge to practical ethical

reasoning beginning from its grounding logic: the state posits its power

through a system of legalized violences that are ostensibly designed to mil-

itate against violence in the social body at large. That is, the distinction

between acts of justice revered in the state as just and criminal acts in the

population condemned as unjust amounts to differences in the social actors,

not differences in the nature of the act; both acts are deeds of violence. The

violences of illegitimate agents, agents not legally sanctioned to violate, are

punished by the violences of the system, an agency sanctioned to violate.

Philosophers have long struggled with the multifarious paradoxes of ‘‘just

punishment.’’ Is punishment always legitimate when administered by the

‘‘legitimate authorities’’ of the state? Or is punishment simply the right of

WENDY C. HAMBLET88