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What is the best backward-looking theory of punishment? Does it work?
There seem to be two possible kinds of justification for punishment: those which justify punishment as a means to some end, such as deterrence or reformation, and those which say that punishment is justified by what the wrongdoer has done. The first kind is a forward-looking justification and the second kind is a backward-looking justification. When it comes to the latter view, the idea that a justification of punishment can be backward-looking is essentially to say that certain kinds of actions call for certain kinds of responses, or that an 'appropriate' consequence is called for from somewhere - in other words that certain responses to action are deserved. Thus desert plays a crucial role in backward-looking theories of punishment. In this essay I am going to argue that desert is at the centre of every definitively backward-looking theory of punishment, in that any other theories of punishment that try to bring in backward-looking justifications also bring in forward-looking justifications while presupposing that desert is a given aspect of our moral thinking. Having isolated the notion of desert as the only purely backward-looking part of a possible theory of punishment, I will go on to argue that it does not actually form part of the justification for punishment according to our best normative theories so far; nevertheless, it is what makes punishment punishment. Griffin (1986) argues that desert cannot be taken out of an account of punishment, or the whole institution of punishment would collapse. Mackie (1982) makes a similar point, calling it the paradox of retribution: 'that, on the one hand, a retributive principle of punishment cannot be explained or developed within a reasonable system of moral thought, while, on the other hand, such a principle cannot be eliminated from our moral thinking'. However he points out that this only seems paradoxical if we forget that our moral concepts are ultimately based on deep aspects of human nature, and not on systems of rationally worked-out moral theory. As it were, moral phenomena can only be made sense of if we try to explain them from underneath rather than from on top. In short, I am going to be arguing along the following lines: desert is central to every definitively backward-looking theory of punishment, but it cannot be derived from other moral principles. However, it is basic to our thinking and essential to our notion of punishment; and the best explanation of this involves rejecting objective claims to morality. So why is desert central to any backward-looking theory of punishment? A lot of backward-looking theories of punishment call themselves 'retributivist' - a term which broadly covers theories of punishment where we are seen to be giving the criminal what they deserve; one retributivist theory which adds something to the notion of desert is the idea of 'repayment', where punishment is inflicted in order to make the offender pay for his offence. This adds an interesting metaphor to the notion of desert, because it is suggesting that the mechanism by which we pay back (retribute) a wrongdoer for his crime is by making him pay back (recompense) society for his crime. Suffering does not literally pay for a crime unless the wrongdoer's particular mode of punishment does some good to society, but it is evident that this metaphorical notion is sometimes part of our conception of punishment, if for instance you look at the cases where people have accepted that the price could be
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