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The Nature of Punishment: Reply to Wringe

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Notes

  1. All references are to Wringe (2013) unless otherwise noted. Wringe (2016: 18-41) reiterates the arguments.

  2. Another objection to our arguments grants AHR and says that the aim to harm doesn’t have the moral significance that we take it to have. We both address this objection (Boonin 2008: 15-16, 28-29, 61-2, 234; Hanna 2008: 333, 2014: 595-7). Wringe seems to press a version of it at one point, but he doesn’t consider our replies (868-9). I give a novel reply in Hanna (ms).

  3. Wringe shifts between talk of burdensome treatment, harmful treatment, and treatment that causes suffering. He also shifts between talk of aims and intentions. He uses these terms interchangeably. I’ll put my claims in terms of the aim to harm. I’ll preserve Wringe’s wording when quoting him and use mine when paraphrasing.

  4. Much of the rest of his paper defends three claims. One: the distinction between aiming to harm a subject and aiming to treat the subject harshly is a genuine distinction (867-8). Two: a harshness based account of legal punishment can accommodate our intuitions about cases (869-73). Three: his preferred “denunciatory” account of legal punishment is consistent with his alternative to AHR (873-4). I’ll focus on the second claim. I’ll argue that there are counterexamples to harshness based accounts and that they don’t accommodate important intuitions about cases.

  5. As I read Hart, he’s saying that punishment must be bad for its victim (harmful) and that being painful is the most obvious way it can be so. He credits the account to Benn and Flew, who are more explicit about this. Flew says that punishment must be an “evil, an unpleasantness, to the victim” and that it needn’t be painful (1954: 293). Benn says that it must “involve” such an evil (1958: 325). More recently, Boonin gives good reasons to characterize punishment in terms of harm rather than pain and suffering (2008: 6-7). That said, pain and suffering are salient harms that punishment is often meant to inflict. So it’s understandable why Hart characterizes punishment in these terms (cf. Hanna 2008: 126).

  6. Hart says that punishment involves pain or unpleasantness. A referee suggested that this is consistent with Wringe’s alternative to AHR because the alternative captures a way that punishment can be said to involve such things. I don’t think that this is a plausible reading of Hart. It’s inconsistent with his later, more straightforward characterizations of punishment. And it takes his criterion to be stating a merely typical feature of legal punishment rather than a necessary one. Hart seems to intend his criterion in the latter way (his ensuing discussion of non-legal punishments suggests this). I think that his use of the word involves is just meant to leave open the nature of the relationship between this criterion and his other criteria. There’s no indication that it’s meant to leave open the possibility that punishment can be harmless.

  7. Wringe’s preferred denunciatory account of legal punishment says that an act is a legal punishment only if it’s meant to publicly denounce wrongdoing. I’ll discuss this claim later. For now, just notice that it poses no problem here. We can stipulate that Judge imposes the sentence to (insincerely?) denounce Thief’s thievery in a non-harmful way. And we can stipulate that being denounced in this way doesn’t harm Thief, e.g., because he finds the attention paid to his daring thefts enjoyable and in no way unpleasant.

  8. I defend my preferred theory in Hanna (2016). It’s not clear what theory Wringe accepts. But he seems to endorse some odd claims about harm. He suggests that a subject who genuinely believes that imprisonment can’t harm her wouldn’t be harmed by being imprisoned (867). No mainstream theory of harm makes harm belief-sensitive in this way. For a critical overview of theories see Bradley (2012).

  9. A referee objected that the sentence might still be a punishment because being sentenced to do community service has a certain “social meaning.” In reply, Judgment seems to show that a token sentence can share the social meaning that sentences of its type typically have without being a punishment. To put this point in terms of the particular meaning that Wringe is concerned with, a token sentence can serve to publicly denounce an offender’s conduct without being a punishment. Judge’s sentence may have such a meaning only because the public is mistaken about the details of the case.

  10. See Bedau and Kelly (2015: Sec. 2), Boonin (2008: 5-6), and Zimmerman (2011: 1-2).

  11. Thanks to two referees for raising these objections.

  12. Michael Zimmerman offers one plausible reply to such worries (2011: 19-21). He says that AHR is true only for agents who act on their own behalf and that a variant of it is true for agents who act on behalf of others like the state. According to this variant, an agent who doesn’t aim to harm a subject can still punish the subject by acting on behalf of someone else who aims to harm the subject. I’m inclined to take a harder line against the above objections and say that AHR s true for everyone. But I won’t give my preferred reply here.

  13. Thanks to a referee for raising this worry.

  14. I frame AHR in such terms in Hanna (ms).

  15. I’d say the same about a weaker version of the wrongdoing criterion, e.g.: an act is a legal punishment only if it’s a response to a legal offense. Bombed is also a counterexample to this claim because Comic doesn’t commit a legal offense (cf. Zimmerman 2011: 14). That said, a weaker version of the disapproval criterion might be true. Maybe all punishments express disapproval. Even if such a criterion is true, though, it doesn’t seem helpful to Wringe. Such a criterion can’t obviously do all of the explanatory and conceptual work that AHR does.

  16. Some of his remarks suggest that he’d find this reply attractive. For example, he seems at one point to say that expressing certain messages is important because it’s central to the justification of punishment, not necessarily because it’s constitutive of punishment (865-6). This thought seems to influence later parts of his paper, e.g., his puzzling remarks about harm and voyeurism (873) and his remarks about justifying what he calls “perfectly tailored punishments” (875-6).

  17. At times, Feinberg seems to see his own account this way too (1965: 408-18). And he emphasizes at the start of his paper that he’s using “a narrower, more emphatic sense” of punishment (1965: 397-8).

  18. Thanks to Stephen Galoob, Bill Wringe, and two anonymous referees for this journal.

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  1. Drexel University, Philadelphia, PA, USA

    Nathan Hanna

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Hanna, N. The Nature of Punishment: Reply to Wringe. Ethic Theory Moral Prac 20, 969–976 (2017). https://doi.org/10.1007/s10677-017-9835-9

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