Abstract
For a brief period in the middle of the twentieth century, it was widely believed that the problem of punishment had finally been solved. The purported solution involved taking elements from both the utilitarian and the retributive theories and creating a “mixed” or hybrid theory. From utilitarianism came the idea that the ultimate goal of punishment was to prevent crime; from retributivism came the idea that punishment must be in response to a prior wrongdoing and be proportionate to that wrongdoing. Hence we could have the best of both worlds; a rational explanation for punishment as well as moral constraints on its use. It however soon became clear that this solution was untenable and even incoherent. It requires arbitrarily separating the two theories without any rational basis; retributivists will object to the idea that the purpose of punishment is utilitarian; utilitarians will object to the arbitrary inclusion of constraints on the maximization of utility. The solution is utterly ad hoc and hence unacceptable.
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Notes
- 1.
See, e.g., Rawls (1955, 7): “The answer, then, to the confusion engendered by the two views of punishment is quite simple”; Hare (1981, 163): “The well-worn ‘problem of the justification of punishment’ is easily solved”; Hugo Bedau (2010): attention to these conceptual distinctions show that “the practice of punishment is clearly justified.” Also noteworthy is the remarkable range of philosophers to whom were attributed mixed theories, including Kant, Hume, and Plato.
- 2.
Benn (1967): “The question of justification arises at two levels”; Bedau (2010): “The general form of any possible justification of punishment involves several steps”; Antony Flew (2002): “The essential first step is to distinguish between justifying the punishment of particular persons and justifying the maintaining of systems of laws with penalties for infractions.”
- 3.
- 4.
- 5.
Zaibert (2006). Actually, “ordinary language” philosophy is closely related to but not identical with conceptual analysis; the former emphasizes close consideration of the way words are used in ordinary language. Most defenders of the Mixed Theory do not rely heavily on ordinary language analysis.
- 6.
Thus Quinton’s argument seems to turn on the question of whether conceptual analysis can provide a priori necessary truths.
- 7.
Cf. also his odd assertion that punishing the innocent is a kind of “lying” imputation of guilt (id., 7), as if the wrong involved in punishing the innocent were morally equivalent to telling a lie.
- 8.
Legal formalism is widely rejected among legal philosophers. But see Ernest Weinrib’s defense of the doctrine in “Legal Formalism” (1999).
- 9.
See e.g. Walker (1999, 598).
- 10.
Note that formalists would have to make the further arguments that laws are conceptually connected to a proportionate punishment, and that not breaking the law is conceptually connected to not being punished.
- 11.
In. Acton (1969, 127).
- 12.
See also Mabbott (1972, 175), Mabbott (1969, 127–128), Hart (1968, 7, 39), Hare (1981, 163), Bedau (2010, 3) (“The values and considerations appropriate to justifying acts are often assimilated to those that define judicial responsibility, whereas the values that bear on justifying the punitive institution are akin to those that govern statutory enactments by a legislator.”).
- 13.
The idea that legislatures only take into account utilitarian motives in the debate on criminal justice and never retributive concerns is also bizarre and clearly falsified, as any examination of Congressional debates on punishment will quickly demonstrate.
- 14.
Mistretta v. US, 488 U.S. 361 at 391 (1989).
- 15.
- 16.
Whether this account really counts as “retributive” is a question I leave until later in this essay.
- 17.
For a recent discussion of the fundamental objections to rule-utilitarianism, see Arneson (2005).
- 18.
See e.g. Smart, in Smart and Williams (1963, 9–12).
- 19.
Hart in fact begins with the puzzling distinction between the “immediate aim” of the criminal law, which is to secure “socially beneficial consequences,” versus the “justification” of punishment (id., 11). This distinction raises multiple further problems: what is an “immediate aim” – is it to be contrasted with long-term aims? Is it another name for “general justifying aim”? Is there an immediate aim for criminal law but not for punishment? Is there a justification for criminal law as well as for punishment? Why does Hart attach the word “justifying” to the general aim, but not the immediate aim? Why does he separate the criminal law from punishment? And why must the immediate aim be utilitarian?
- 20.
Dolinko thinks Hart is “confused” here in failing to distinguish the rational justification from the moral justification (though it is unclear what Dolinko means by “rational justification”) (1991, 591).
- 21.
If Hart is implying that a principle of distributive justice is at work here, he does not explain himself, though some have attempted to develop a theory of punishment based on distributive justice (see, e.g., Scheid 1997, 483 ff). For a discussion of the difficulties of squaring punishment with distributive justice, see Murphy (1985), Alexander (2002, 818).
- 22.
A rare example of this view is found in Barton (1999, 46).
- 23.
The classic treatment is Fuller (1996).
- 24.
1968, 19. Hart makes two other arguments, both equally unsatisfactory. First, Hart asserts that retributivism as a General Aim would have to hold there is a “natural” penalty for every crime (id., 25). This is a caricature of the retributivist position; the retributivist could agree with Hart that proportionality is at best a rough, commonsense judgment (id.). Second, Hart suggests the distinction is evidenced by the fact that the concept of “justification” (of which self-defense is paradigmatic) belongs on the side of General Aim, while “excuse” belongs on the side of “distribution” (id., 13–14). But most theorists believe the distinction between justification and excuse is far less clear. See e.g. Kent Greenawalt (1984). Indeed, Hart’s key example of justification, self-defense, was in fact considered an excuse, not a justification, until the mid-nineteenth century! See Rosen (1986).
- 25.
Some other commentators have tried to defend Hart’s definition by demonstrating its applicability to other institutions. Joel Feinberg for example considers the game of football, distinguishing its general justifying aim from its rules of procedure and fair play. It is hard to be confident that there is a “general justifying aim” of the game of football. But even if it does have such a thing, surely the rules are part of it, indeed constitutive of the game, not an external limit imposed from without (much less a principle of “distribution”) (1990, 147). George Fletcher thinks Hart’s distinction fits perfectly on the tax system, the general aim of which is to raise revenue, while the distributional question is determined by one’s ability to pay. But it is simply false that the tax system is designed with the single aim of raising revenue. Congress pursues all sorts of aims in the tax code, including creating incentives for certain behavior (promoting energy efficiency, home ownership, business investment, etc.), and redistribution of wealth (a “distributional” question which is also a General Aim). Nor would it even make sense to talk of raising revenue in the abstract, as if that question could be separated from the “distributional” question of who will be taxed and at what rates; the question of individual ability to pay is essentially connected to the goal of raising revenue, not a separate question (2000, 419).
- 26.
Dolinko (1991, 541).
- 27.
It is perhaps the unstated idea behind Hart’s otherwise puzzling distinction between General Aim and Distribution: Hart seems to have chosen the modifier “general” to suggest it concerned with the system as a whole, as distinct from the specific application to individual persons (cf. 39, distinguishing general aim from particular case).
- 28.
Nowhere are we given a satisfactory definition of the key terms of institution, practice, system, application, rules; nor is the concept of “logical priority” carefully defined. Rawls says (in a footnote) that he means to use “practice” as a “sort of technical term,” meaning “any form of activity specified by a system of rules which…gives the activity its structure” (1955, n. 1). But this is not particularly helpful, especially given the lack of definition of “activity” or “rules” or “system.” Are there activities not specified by rules? Are some activities more structured than others?
- 29.
See Searle (1979).
- 30.
Searle (1997, 456).
- 31.
See, e.g., de Waal (1997, 92, 94).
- 32.
The claimed logical priority of the institution to the individual cases is also belied by the fact of continual interplay between the two in our system. For example, the various “landmark” criminal justice decisions in the Supreme Court involved situations where the decision as to the individual case required a radical restructuring of the criminal justice system itself: e.g. Gideon v. Wainwright, in which defendants were guaranteed a right of counsel, Miranda v. Arizona which reshaped police interrogation, and Furman v. Georgia which resulted in overturning capital punishment as currently practiced.
- 33.
Strictly speaking, for Hart the question of liability to punishment is a retributive question, while the question of amount of punishment involves both retributive and utilitarian concerns (1968, 14, 24). Note also that Hart characterizes distribution as a “limiting” principle, thus begging the question in advance in favor of negative retributivism (if utilitarianism were the distributive principle, it would be odd to call it a “limit”).
- 34.
Cf. the same error in Scheid (1997, 452).
- 35.
Note that even for Hart, the conflict between utilitarianism and retributivism remains unresolved with respect to setting the amount of punishment.
- 36.
Indeed, Rawls seems to have used the two-question strategy as a general strategy for rescuing utilitarianism from its critics (see Rawls (1955, 30), explaining that the key problem cases for the theory, promises and punishments, can both be handled by the practice/application distinction).
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Kaufman, W.R.P. (2012). The Mixed Theory of Punishment. In: Honor and Revenge: A Theory of Punishment. Law and Philosophy Library, vol 104. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4845-3_4
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