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Published online by Cambridge University Press: 16 February 2016
The deontological justification of punishment is generally associated with the notion of “retributive justice”. This notion, however, underlies only one of two distinct approaches by which one may attempt to justify punishment within deontological morality. According to this, the classical approach, punishment is to be regarded as an end in itself, intrinsically valuable, from the moral point of view. According to other deontological views, however, punishment has only instrumental value – not, as in consequentialism, in the maximization of some general social good, but in the maintenance and equal distribution of basic individual rights. Borrowing Dworkin's terminology, this view can be called a “right-based” conception of punishment.
1 For a survey of the main retributive views, see, for example: Lyons, D., Ethics and the Rule of Law (Cambridge University Press, 1984) 146–155Google Scholar. Interestingly, J. Rawls can be interpreted as conceiving punishment, or at least a certain aspect of it, as intrinsically valuable; see A Theory of Justice (Oxford University Press, 1972) 314–315Google Scholar.
2 Dworkin, R., Taking Rights Seriously (Harvard University Press, 1977) 171Google Scholar.
3 Supra n. 2. For the meaning of “right” in the first sense and the idea of its priority over “good”, see Sandel, U.J., Liberalism and the Limits of Justice (Cambridge University Press, 1982) ch. 1Google Scholar. See also Rawls, supra n. 1, at 3–6.
4 For an interesting comparison between the views of Kant and Rawls on this point see: Sandel, supra n. 3.
5 Nozick, R., Anarchy, State, and Utopia (Blackwell, 1974) 65–71Google Scholar. (The name of the argument is given by Nozick himself.)
6 See Gewirth, A., Reason and Morality (University of Chicago Press, 1978) 290–304Google Scholar. For a similar argument, see also Morris, , “Persons and Punishment” (1968) 52 The Monist 476–490CrossRefGoogle Scholar.
7 See Lyons, supra n. 1.
8 See Wasserstrom, R.A., Philosophy and Social Issues (University of Notre Dame Press, 1980) 142–146Google Scholar.
9 See, for example, Wasserstrom, ibid., at 112; Hart, H.L.A., Punishment and Responsibility (Oxford, 1968) 4, 6Google Scholar. This distinction has strong intuitive support. If, for example, X and Y were justly required to pay a sum of $100 each, once as the result of criminal proceedings, and once as a result of a civil suit for compensation, and X was very wealthy, Y very poor, we would feel that the penalty was rather unjust (the wealthy X has not “really” been punished), while in the second case, no such injustice is necessarily involved. Another example would be the prohibition of insurance for criminal, penalties which forms a part of every modern system of law.
10 The so-called Reform theory has challenged this view. Its supporters claim that we should abandon the conception of punishment as described here, and should treat wrongdoers as we would someone suffering from a disease. For decisive criticisms of the Reform theory, see, for example, Hart, supra n. 9, at 24–27, 240–241; Wasserstrom, supra n. 8, at 122–130.
11 Note that I refer here to the principle of compensation and not to the Law of Tort. It is typical of the latter, not the former, to have additional social aims which partly intersect with the aims (and means) of punishment (e.g., its deterrent role in achieving certain desired patterns of behaviour in society).
12 Nozick, supra n. 5, at 59. Note that Nozick disregards the distinction between prohibition and punishment, most likely because he conceives the concept of prohibition as conceptually connected to the sanction of punishment. He is probably wrong. For a criticism concerning a similar issue, see MacCormick, N., Legal Rights and Social Democracy (Clarendon Press, 1982) ch.12Google Scholar.
13 Nozick, supra n. 5, at 66–67. Nozick has another, different argument, based on the distinction between full and market compensation. See ibid., at 63–65. This argument shall not be considered here.
14 For example, see Hart, supra n. 9, at 4–16; Lyons, supra n. 1, at 155–167.
15 Nozick, supra n. 5, at 68–69.
16 There could be other possible answers, such as “satisfaction”, or “condemnation” (for an interesting example, see Tohami v. State of Israel (1986) 40(i) P.D. 733), or even vengeance. Such answers are of doubtful plausibility (see, for example, Hart, supra n. 9, at 170–173, 235, 267). In any case, they are irrelevant here, as we are considering the right-based conception of punishment.
17 Nozick, supra n. 5, at 33.
18 Ibid., at 67, footnote.
19 Note that Nozick's argument applies to attempted crimes as well as to offences carried out, because it is the potential of arousing fear involved in the nature of such activities which justifies their prohibition (see also Nozick's excellent account of risky activities, supra n. 5, at 73–78). However, this argument probably cannot be applied to paternalistic motivated offences, and so-called victimless crimes. I doubt whether this should be considered a flaw in Nozick's argument. I believe that any account of the criminalization of such activities exceeds the issue of punishment; it demands a comprehensive political theory, defining the scope of the justified intervention of law and State in the regulation of human behaviour. Nozick's own political theory (denying any justification for the criminalization of such offences), whatever one thinks about its correctness, is, I believe, a good example.
20 The justification of social institutions on the grounds that they increase social welfare seems a puzzling idea for Nozick to hold, not only because of his criticism of utilitarianism (supra n. 5, at 26–35), but also in view of his entitlement theory of justice and his various criticisms of Rawls' “difference principle” (see ibid., ch. 7).
21 Nozick himself seems to be unaware of these problems of degree and balance, although he does pose the rhetorical question: “How does one measure how jumpy people generally are?” (ibid., at 70; my emphasis); but this is not my point here. The difficulty I see is more substantial than the mere assessment of social facts.
