Identifying an overarching justification for the permissibility of punishment is a crucial part of the philosophy of criminal law, and a concept that has traditionally generated substantial debate. Drawing on a variety of sources, I will argue that the permissibility of punishment can only be explained through a combination of the rights forfeiture and stakeholder society theory. I will demonstrate that the traditional theories of punishment only explain why we feel punishment is necessary, as opposed to why it is morally permissible and justified. In doing so I will outline the consequentialist and retributivist viewpoints and explain why they are not satisfactory when looking for a moral justification. I will then explain the rights forfeiture and stakeholder society theories and defend them against potential criticisms. I will conclude to demonstrate that by considering contemporary theories such as the rights forfeiture and stakeholder society theories, we can begin to understand not why punishment may be favourable, but why it can be morally permissible.
Firstly, the elements of the statement in question must be addressed. When discussing permissibility, the meaning behind this tends to be that of moral permissibility. In other words, there is little practical use in debating the permissibility of punishment from a political point of view because every country enforces a state-led punishment system. The contentiousness therefore concerns how punishment can be justified, because normatively we hold that punishment is wrong. It is necessary at this point to define punishment for the purposes of this essay. I will be using the Flew-Benn-Hart definition :
(i) It must involve pain or other consequences normally considered unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be of an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human beings other than the offender.
(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.
This definition has faced criticism; for including ‘too many’ or ‘too few conditions’ ; for excluding a feature that Joel Feinberg includes in his definition – that punishment ‘be intended to communicate moral condemnation’ . However it will be used for the purposes of this essay to provide a starting point for consideration.
Normatively, punishment is wrong. It is wrong to ‘intentionally’ inflict ‘pain’ on others. The issue for this essay to satisfy is therefore: what makes punishment morally permissible? The need to justify this issue is not just moral; with figures from the National Audit Office showing a cost of two billion pounds per year spent on the criminal justice system (excluding prisons, police and other bodies who prosecute cases) alone , notwithstanding the collateral effects of punishment – relatives, victims, dependants, etc. – punishment bears a heavy cost to society.
There are two main groupings in which justificatory theories fall into: those ‘concerned with preventing future crimes and those concerned with punishing crimes already committed ’. The former are usually referred to as utilitarian, or consequentialist, meaning that they intend to derive ‘usefulness’, or an overall net positive consequence, from punishment. This means they are primarily based around deterrence; if a punishment deters an offender from re-offending or discourages would-be offenders from initially offending, the ‘usefulness’ or overall positive consequence to society is clear. These are known as forward-looking theories of punishment, as they are concerned with the future impact of punishment, and less so with the facts and circumstances existing up until the point of punishment. In contrast, backward-looking approaches to punishment fall under retributivism. This means that the focus is on ‘exacting retribution’ from offenders based on the concept of just deserts – punishment is justified because offenders deserve their punishment due to the wrongdoing they have committed. In the same way that consequentialism has little regard to the past, retributivism pays little mind to the future conduct of the offender or even the broader impact of punishment on society. From this overall explanation, it is clear that the narrow spectrum of consideration and consequence from each theory allows a range of criticism, usually directly conflicting with each other in vice versa fashion, doing little to explain the overall question of how punishment can be morally permissible. For example, a criticism of consequentialism could be that it treats people as means – work out a way to explain this succinctly or delete.
As discussed above, consequentialism is a theory that explains whether actions are morally wrong or right depending on their positive net consequences. With regards to punishment, deterrence theory is the main view that comes under consequentialism. This is because the aim of deterrence is to reduce crime. Deterrence can operate at two levels: individual/specific, and general. Individual deterrence acts by deterring the offender themselves from re-offending because the wrongdoing becomes undesirable due to the punishment – essentially, ‘because it brought him more pain than pleasure’. General deterrence involves the same concept but to deter others from considering committing a crime by demonstrating how the consequences are worse than the perceived benefit of criminality. At its most basic form, deterrence works by ‘making the individual afraid to offend’.
Because deterrence is focused on frightening people, it can lead to the severity of punishments increasing without due correlation with the severity of the offence. While it is difficult in and of itself to align specific offences with corresponding, appropriate punishments, especially for ‘mid-level crimes’, such as burglary and theft reformat and explain, most people would agree that even if it there was compelling evidence that giving life sentences (or even capital punishment in retentionist countries) to drivers caught speeding greatly reduced incidences of speeding, leading to reduced accidents and thus lowered incidences of harm to society, the concept of punishing those who inevitably would be caught would be distasteful to many, and deemed far too harsh a punishment for a relatively minor offence. Fundamentally, assessments such as determining severity of punishments for each individual would be very difficult to undertake. In addition, as Brooks discusses in the context of capital punishment, there is very little evidence (if any) that capital punishment deters. In fact, he suggests that amidst conflicting evidence that pro-death states experience higher murder rates than states that do not practice capital punishment. He continues to suggest that ‘approximately 90 percent of the most violent criminals fail to perceive their risk of apprehension or likely punishment’.