The Problem of Punishment

Abstract

Just as it was important in the previous chapter to articulate some desiderata of a theory of moral responsibility, it is also vital to elucidate some of the desiderata of a theory of punishment.¹ First, it is desired that a theory of punishment provide a definition of “punishment” so as to avoid conceptual confusion. This leads naturally to a recognition of various senses of punishment, from imprisonment to physically hard treatment, compensation, among other means of dealing with criminals which would properly constitute punishment. For some alleged theories of punishment which are proposed as positive theories (i.e., those which hold that punishment is sometimes morally justified) do not seem to be punishment theories at all, but something else, perhaps even negative theories of punishment (e.g., those which deny that punishment is ever morally justified). Secondly, it is desired that a theory of punishment respect John Rawls’ distinction between the justification of the institution of punishment and the justification of particular forms of punishment. For what justifies the former might not justify the latter, for example. It might well be the case that it is morally justified to punish criminals, but of the particular forms of punishment available for specific criminal cases, none is morally fitting. In any case, it is desired that a theory of punishment say what justifies punishment in both Rawlsian senses. Thirdly, it is desired that a theory of punishment concerned itself with corrective justice, as that is its principal aim. This desideratum may seem obvious. But it is meant to caution against a theory of punishment’s placing considerations other than those of corrective justice (e.g., distributive justice) at the forefront of concern in punishment.