M Rodgers McClure Punishment-TheVeryIdea

M. Rodgers McClure

Punishment: The Very Idea

PUNISHMENT: THE VERY IDEA Miriam Rodgers McClure The University of Oxford

tel: 415-471-5151 email: [email protected]

I. INTRODUCTION The morality punishment has always been a fraught issue. But in the mid-20th century, as

debates about punishment reached a fever pitch, H.L.A. Hart doubted these discussions had ever

been more confused. In his famous essay, Prolegomenon to the Principles of Punishment, Hart 1

diagnosed this confusion as a symptom of our general tendency to over-simplify matters and warned

us that until we learned to appreciate punishments complexity, we would remain unfit to assess our

institutions of punishment. But fifty years later, debates about punishments justification are no less 2

fraught. And this paper sets out to discover why.

Hart believed that the key to resolving the mounting confusion surrounding punishments

justification lay in recognizing that punishment presents multiple questions calling for separate

explanation. For example, there are questions about punishments definition, questions about its 3

justification, and questions about its distribution. Hart thought that the beginning of wisdom

(though by no means the end of it) is to distinguish similar questions and confront them separately

-- which he did in the Prolegomenon. But Hart answered questions of punishments definition too 4

quickly, listing five elements of the so-called standard case without asking whether any of those

features are [part of] the very idea of punishment. And in neglecting this question of definition, Hart 5

overlooked something important: punishment has a distinctive logic that requires distribution on

certain grounds. So the very idea of punishment does not allow for wholly separate treatment of

questions of its distribution and justification. Hart failed to realized that justifying punishment

necessarily involves justifying its distinctive distributive logic.

Harts error is symptomatic of a larger problem. We are not clear about the criteria for a

successful justification of punishment. The solution, it seems to me, is an adequate philosophical

1 H.L.A. Hart, Prolegomenon to the Principles of Punishment in Punishment and Responsibility: Essays in the Philosophy of Law (Oxford and New York: Oxford University Press, 2008): pp. 1-27, pp. 1-3.

2 Hart, p. 3. 3 Ibid., p. 4. 4 Ibid. (emphasis added). 5 Ibid., pp. 4-5.

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definition of the concept of punishment that draws out the logically necessary features of

punishment, focusing our attention on those features calling for justification and illuminating the

interrelationship between punishments defining features. This paper revives Harts central project:

its main object is to provide a framework for discussing the complexities surrounding punishment. 6

But while Harts approach was to distinguish different questions about punishment and confront

separately, this paper aims to show how a more complete answer to the question of punishments

definition informs our answers to the other questions of punishment and helps explain why

punishment's justification is so fraught.

II. DEFINITION In the Prolegomenon, Hart defined what he considered to be the standard case of

punishment in terms of the following five elements:

1. It must involve pain or other consequences normally considered unpleasant.

2. It must be for an offense against legal rules.

3. It must be of an actual or supposed offender for his offense.

4. It must be intentionally administered by human beings other than the offender.

5. It must be imposed and administered by an authority constituted by a legal system against which the

offense is committed. 7

This definition of the standard case draws heavily from influential proposals by Anthony Flew and

S.I. Benn. Hart offered little elaboration, but he did add examples of sub-standard cases (including 8

punishments in families and schools, vicarious and collective punishments, and punishments of

persons known to be innocent) to prevent what he described as the definitional stop in

discussions of punishment. And his concerns about the definitional stop argument may also have 9

encouraged him to forgo any attempt to identify logically necessary features of punishment. Some

prominent early 20th-century theorists came to believe that punishment entails guilt and that this

insight was the key to overcoming the charge that justifying punishment by reference to its good

consequences encourages or permits punishment of the innocent as well as punishment of the

guilty. The basic idea was this: If punishment entails guilt, so-called punishment of the innocent is 10

6 Ibid, p. 1. 7 Ibid., pp. 4-5. 8 See Anthony Flew, The Justification of Punishment, Philosophy 29(111) (1954): pp. 291-307; S.I. Benn, An

Approach to the Problems of Punishment, Philosophy 33(127) (1958): pp. 325-41. 9 Hart (2008), p. 5. 10 The locus classicus for this view is Anthony M. Quinton, On Punishment, Analysis 14(133) (1954): pp.

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something other than punishment. Therefore, as a matter of logic, good consequences cannot justify

punishment of the innocent because that (i.e., punishment of the innocent) is oxymoronic. As Hart

recognized, this is an abuse of definition. For even if punishment did entail guilt (and he did not 11

think that it did), the question of whether (or when) the punishment of an innocent person is

justified is a genuine moral dilemma that cannot simply be defined out of existence. And the lesson 12

here is that one cannot resolve genuine concerns about punishments morality by building

normative features into punishments definition. That does not mean, however, that punishment

cannot, or should not, be defined by reference to its logically necessary features. 13

Hart might also have been wary of attempts to define punishment because, like Flew, he

recognized that the term punishment is used in so many ways and applied in so many

circumstances that the ordinary meaning of the word cannot be explained by a list of necessary and

sufficient criteria. A philosophical definition of a concept like punishment, however, is not an 14

explanation of the ordinary meaning of that term. Instead, it identifies and explains the features 15

that distinguish punishment from other related phenomenon and calls out for special attention

those features calling for justification. Admittedly, talk of punishment is often loose, and to punish

sometimes just means to treat harshly. But these looser uses of punishment are parasitic of a

tighter, more analytically robust concept that identifies actions and institutions with certain

distinctive features. We use language to carve up the world in certain ways, and the job of the

analytic philosopher is to identify how we have carved up parts of world so that when we assess or

defend a phenomenon like punishment, we can ensure that we are assessing or defending that

phenomenon. We need a firm grasp on what the concept of punishment entails so that we see

clearly the problems posed by that phenomenon and so that we do not mistake the problem of

punishment for a more general problem (like how do we justify harming others?). Put another

way, we need an adequate philosophical definition of punishment to focus our justificatory efforts.

This paper will develop just such a definition, taking as its starting point Harts definition of the

standard case of punishment.

133-42. 11 Hart, pp. 5-6. 12 John Kleinig, Punishment and Desert (The Hague: Martinus Nijhoff, 1973), p. 13. 13 See Leo Zaibert, Punishment and Retribution (Aldershot: Ashgate, 2006), pp. 22-28. 14 Flew, p. 292; see also, e.g., H.L.A. Hart, The Concept of Law, Third Edition (Oxford: Oxford University Press,

2012), p. 73 (Very often the ordinary or even the technical, usage of a term is quite open in that it does not forbid the extension of the term to cases where only some of the normally concomitant characteristics are present.).

15 Joseph Raz, The Morality of Freedom (Oxford and New York: Oxford University Press, 1988), p. 165.

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Harts definition of the standard case usefully suggests that punishment has at least five

features. Although here, I will state them in a different order than Hart to bring out the 16

interrelationship between these features. The features Hart identified are:

1. Punishment is an intentional action. (E.g., It must be intentionally administered by

human beings other than the offender.)

2. Punishment is carried out with a certain negative intention. (E.g., It involves the

intentional administration of pain or other consequences normally considered

unpleasant.)

3. Punishment is imposed on certain grounds. (E.g., It must be for an offense against

legal rules.)

4. There is someone on whom punishment is imposed. (E.g., It must be of an actual or

supposed offender for his offense.)

5. Punishment involves the exercise of authority. (E.g., It must be imposed and

administered by an authority constituted by a legal system against which the offense

is committed.)

I will not spend time here discussing the fifth feature because I do not agree with it. But I will 17

explore each of other features identified by Hart in turn, elaborating upon the features that

distinguish punishment from related phenomenon and focusing our attention on those that call for

justification.

1. The Intentional Action

The first feature of punishment Hart identified to which I would like to draw your attention is

that it is intentionally administered. Now, I take it that punishment involves doing something 18

intentionally (an intentional action) that causes the person punished to suffer some harmful result

like harm or deprivation. But the same is often true of compensation: some P intentionally imposes 19

16 Hart (2008), pp. 4-5. 17 There does not seem to me to be any relationship between punishment and authority that gives authority a

special place in an account of punishment. For one might punish a disloyal friend, an inconsiderate spouse, or even a rude stranger without having or claiming any moral, legal or political authority over the person punishment. Some theorists are skeptical about the idea that these are genuine instances of punishment, but I will not engage them here. For a more developed defense of the view that authority is not necessary for punishment, see Zaibert, p. 21.

18 Hart (2008), p. 5. 19 In this section, I will use harm or harmful as shorthand for whatever unwelcome consequences the

punisher intends for the person punished. The next section is devoted to this negative intention.

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liability on some D to pay compensation some V, and in paying compensation to V, D suffers a

foreseeable loss. What distinguishes punishment is that the harmful result is, in Harts parlance,

intentionally administered. And this formulation rightly suggests that punishment is distinctive

because it involves more than just an intentional action causing a harmful result. Punishment also

involves intending and having a kind of control over that result. Admittedly, intentionally

administered is rather archaic, but it reflects a valuable insight that, at least in cases of direct

punishment, is more aptly captured by intentionally inflicted. So let us pause for as moment to

consider the notion of infliction in greater detail.

First, infliction is an intentional action. And while all genuine actions (as opposed to mere

happenings) are in some sense intentional, the relationship between intention and action is

complex. Causal theories of action like Donald Davidsons posit that the link between our intentions

(e.g., what we want) and what we do (i.e., our actions) is causal. The idea is that the things we do 20

(i.e., actions) are distinguished from the things that happen to us because actions are caused by the

agents intentions. But an agents intentions can cause the agent to make an unintended movement,

and this would not count as genuine action even if the unintended movement causes an intended

result. To illustrate, imagine that Jones intends to spill his drink near the window at a cocktail party

as a sign to his co-conspirators that the coast is clear for them to burgle his hosts art collection. 21

Unfortunately for Jones and his cohorts, Joness ill intentions make him nervous, and his nerves

cause him to spill his drink before the coast clears. His intention to signal his associates by spilling his

drink caused him to give that signal in spilling his drink, but it does not follow that spilling his drink

was a genuine action in the intended sense. And so, as this counterexample shows, causation is not

sufficient for action. Nor is it necessary, provided that the agent can make adjustments to

compensate for the effect of consequences that would otherwise interfere with his intended course

of action. We might think of an agent as like a driver whose car is coasting down a hill. The driver 22 23

is entirely satisfied with the cars speed and direction, and so does not adjust its movements in any

way. But this does not mean that the cars movement is not under the drivers control. What counts

is that he is ready, willing, and able to intervene if necessary. Likewise, if you are lying in the

savasana (or corpse) pose at the end of a vigorous yoga class and do not adjust your body in any

way because you are entirely satisfied with your current position, your (lack of) movement does not

show that remaining in the pose is not an intentional action. What counts is that you feel in control

20 See Donald Davidson, Essays on Actions and Events (Oxford and New York: Oxford University Press, 1980). 21 Harry G. Frankfurt, The Problem of Action, American Philosophical Quarterly 15(2) (1978): 157-62, p. 157. 22 See Frankfurt. 23 Ibid, pp. 159-60.

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so that your movements are under your guidance and their course is guaranteed. Thus, as Harry 24

Frankfurt taught us, the most salient distinctive feature of actions is not their causal connection to

intentions, but rather the agents guidance or control over the course of action. To bring the point 25

back to intentions, one has control over the course of action in the relevant sense when the course

of action is moved and guided by ones intentions.

Second, infliction is a special sort of intentional action that cannot exist in the absence of

certain attitudinal conditions, namely the intention to cause a certain negative result. The next 26

section of this paper will explore this intention in greater detail, but for present purposes, it is

sufficient to say that punishment involves the infliction of harm (broadly construed). And the

infliction of harm cannot exist without the desire that the person on whom harm is inflicted in fact

suffers harm.

Third, the negative intention guiding the infliction of harm does more than directs the course

of action constituting the infliction; it also guides its intended concomitant result. Thus, the role of

intention in infliction can be characterized as follows:

a. An agents intentions guide the course of an intentional action and its intended

result.

And the role of intention in an action of type (a) can be contrasted with the role of intention in other

sorts of actions where, for example:

b. An agents intentions guide an intentional action that has an unintended result. (E.g.,

P is running down the stairs holding her phone and trips, accidentally breaking the

phone on the tile floor.)

c. An agents intentions guide an intentional action that causes an intended result in an

unintended way. (E.g., P points and shoots her gun at D intending to kill him, but her

weapon misfires into a nest of hornets that sting D to death. ) 27

d. An agents intentions guide an intentional action that causes an expected (but

perhaps unintended) result in an expected way. (E.g., P imposes liability on D to

compensate V, resulting in a loss to D.)

24 Ibid, p. 160. 25 Ibid. 26 See Frankfurt, p. 161; cf. David Pears, Two Problems about Reasons for Actions, in R.W. Binkley et. al.

(eds.), Agent, Action, and Reason (Toronto: University of Toronto Press, 1971): pp. 128-53, pp. 136-37, 139. 27 George Wilson and Samuel Schpall, Action, in Edward N. Zalta (ed.), The Stanford Encyclopedia of

Philosophy (Summer 2012 edition), available at .

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e. An agents intentions guide an intentional action that causes the intended result in

the intended way, but the agent has no control over the result. (E.g., P places a large

bet on a horse, intending to make her fortune, and luckily wins. ) 28

Now, we can more clearly see how the role of intention explains the distinction between

punishment on the one hand and compensation on the other. The imposition of liability is an action

type (d): P performs an intentional action (i.e., imposing liability on D to compensate V) that has an

expected harmful result (i.e., harm or deprivation to D), but the result is not necessarily intended. 29

That is, it might be all the same to P if D pays V himself or if D has insurance that will pay V. (And

even if P does want D to suffer harm, once she imposes liability on D, she has no further say in the

matter.) By contrast, if P punishes D, she intends for D to suffer harm. And more than that, her

intention guides the infliction so that she is in a position to control what and how much harm is done

to D. In other words, compensation involves an intentional action and an expected (if unintended)

harmful result over which the agent has no control. But punishment involves an intentional action,

an intended harmful result, and some sort of control over that result. And to say that punishment

involves infliction (an action of type (a)) captures these defining features.

But control is a matter of degree. In the simplest case, P inflicts harm on D directly. And if P

gives D forty lashes or locks him up in a cell herself and keeps the only key, P has complete control

over the harm done to D. This is clearly an action of type (a) for which the description the infliction

of harm is entirely appropriate. And assuming all of the other logically necessary features of

punishment are present, this would equally clearly count as an instance of punishment. Near the

other end of the spectrum is an action of type (c), where P intends to cause D harm and succeeds,

but has no control over the harm done to D. So if all P wanted was to kill D and her misfired bullet

hits a nest of hornets that sting D to death instead, she will have succeeded (luckily). But if she

wanted to kill D as punishment, she will have failed.

Then, in between (a) and (c) are actions of type (d), which seem closer to punishment but

still falls short due to the lack of control over the result. Here is an example: In one of TinTins

adventures, Prisoners of the Sun, the Incas have declared that Tintin and his friend Captain Haddock

will be put to death on a pyre set alight by the Sun god himself as the Suns energy is focused

through a lens. Luckily for the prisoners, the Inca prince allows Tintin to choose the hour of their 30

demise. He chooses the date and time of a known solar eclipse. And so at the appointed time, the

28 Joseph Raz, Being in the World, Ratio 23(4) (2010): pp. 433-452, p. 441. 29 In the case of compensation, the expected result is unintended, but not unintentional we reserve that

term for accidental outcomes. 30 Herg, Prisoners of the Sun (Leslie Lonsdale-Cooper and Michael Turner (trans.)) (London: Mammoth, 1990).

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moon eclipses the sun, blocking the rays that would have set fire to the prye. The terrified Incas,

believing that Tintin has control over the Sun god, insist that they were only sacrificing and not

punishing the foreigners. This might have been a ruse on the part of the Incas to avoid the wrath

of the Sun god (and of Tintin himself), but their response is nonetheless perfectly intelligible. The

Incas intended to cause Tintins death, and had there been no eclipse, the Incas would have

succeeded. But insofar as they attribute agency to the Sun, they nonetheless would have believed

that they had no control over whether Tintin lives or dies. From that perspective, the Incas were

merely offering Tintin and Haddock up to the Sun god who would decide their fate(s).

So what if P sets an impeccably trained attack dog on D, who attacks in an expected way and

will stop immediately upon Ps command? This case seems closer to an action of type (a) than of

type (c). For although Ps control over the harm done to D is indirect, it is present and (near)

complete. And if P set out to punish D, I think she will have succeeded (provided the other logically

necessary features of punishment are present). Though if the dog was less well trained, it will seem

less appropriate to call that an instance of punishment. The upshot is that punishment is distinctive

because, unlike other related phenomenon involving intentional actions that bring about foreseen

negative results like compensation and even sacrifice, punishment also necessarily involves an

intention to bring about that negative result and it requires a certain amount of control over that

result for its successful performance.

2. The Negative Intention

Up to this point, I have used the term harm loosely to capture the intended negative result

for the person punished in paradigmatic cases. But the question of whether any specific negative

intention is part of the very idea of punishment is open. And we will turn to it now. Hart suggested

that the punisher intends to inflict pain or other consequences normally considered unpleasant. 31

And in doing so, he makes a slight but significant departure from Anthony Flews earlier proposal

that the standard case of punishment is an evil, an unpleasantness, to the victim[.] The difference 32

is important because while Flew suggests that the punisher intends for the punishment to be

31 Hart (2008), p. 5. Note that although we are discussing the aims and intentions of the punisher, we are not concerned with what aims tend to justify punishment. For we must identify the defining aim of punishment before we can assess its supposed justifying aims. Cf. John Finnis, Retribution: Punishments Formative Aim, The American Journal of Jurisprudence 44 (1999): pp. 91-103 (objecting to the characterization of punishment as essentially involving the infliction of pain and arguing that its formative aim is suppress the will which took for itself too much.).

32 Flew, p. 293.

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experienced as an evil or unpleasantness, Hart seemed to deemphasize the experiential element

by allowing for punishments that are merely normally considered unpleasant. 33

Words like punishment and coercion are success words that are also frequently (and

legitimately) used to name failed attempts, and Hart might have used the phrase circumstances

normally considered unpleasant to leave room for such linguistic flexibility. For example, one might

speak of a coercive threat when there was only the unsuccessful threat and no actual coercion.

(Imagine that Abe threatens to shoot Bea if she does not hand over his purse immediately, but Bea

ignores the threat, giving Abe a swift kick in the groin and running off). Likewise, one might speak of

inflicting a punishment when there is only a failed attempt. To see one way in which an attempted

punishment can fail, imagine the following conversation between Smith and Evans. Evans sees Smith

pummeling their mutual enemy Jones and asks Smith what he is doing. Smith looks up, furrows his

brow, and says, Cant you see Im punishing Jones? As it turns out, Jones is a bit of a masochist.

Evans knows this and exclaims, Smith, man! Cant you see that Jones is loving it! Now, perhaps

Smith is nonplussed. He might admit that he is doing a rather poor job punishing Jones, but insist

that he is punishing Jones all the same. So Evans is using punishment to mean success, while Smith

is using the term to cover both a failed attempt as well. Both uses of the term punishment are

perfectly legitimate. But in the interest of conceptual clarity, Smith (and Hart) would be better off

admitting that Smiths attempt at punishing Jones has failed rather spectacularly because while

Smith intended to make Jones suffer, he only succeeded in giving Jones pleasure. 34

But successful punishments lie along a continuum. And at one end are punishments that

succeed only in the sense that the subject of punishment is aware that he is being subjected to

punishment. But what makes punishment a more complete success in the eyes of the paradigmatic

33 Two notes. First, I take it that Hart and Flew use unpleasantness in conjunction with pain or evil to broadly cover both physical and mental suffering, as well as deprivation. But as we will see, neither formulation hits quite the right note. Second, Flew likely used the term evil in the sense of doing or tending to do harm rather than in the sense of being morally bad. But, as J.D. Mabbott points out, the term evil always carries with it this latter connotation. J.D. Mabbott, Professor Flew on Punishment, Philosophy 30(114) (1955): 256-65, p. 257. And this may tempt us to define away the debate about whether the pain or deprivation suffered as deserved punishment is, in fact, morally bad. Pain does not have the same moral connotation. 34 Actually, Smiths attempt at punishing Jones will not have failed completely provided that Jones is at least aware that Smith is trying to punish him. Smiths failure would be even more complete in the following circumstances: Imagine that Smith attempts to punish Jones by secretly destroying the azalea bush in Joness garden. But unbeknownst to Smith, Jones hated those fuschia azaleas and only refrained from destroying them himself to avoid his wifes wrath. Here, Smiths attempt ones has failed so completely we might hesitate to apply the term punishment in the circumstances. For Smith has not only done Jones a service, but Jones has no idea that Smith has even attempted to punish him. The point is that, at the very least, a person subjected to punishment must be aware of that fact. And so punishment necessarily involves a minimal experiential element (i.e., awareness on the part of the person punishment). But this has little justificatory importance.

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punisher (or spectator)? Is the key to successful punishment a negative sensory experience, as Flew

suggested? Other theorists have argued that while a painful experience may once have been the

mark of successful punishment, in modern civilized society, the fact of deprivation of something

good even (or especially) when it is not painful makes punishment a success. And still others 35

argue (rather opaquely) that thinking about punishment as essentially experiential is a mistake

because its essence is subtraction on the level of the will (i.e., successful punishment is

something contrary to their wills.). Each of these views is incomplete, but adds something the 36

other lack. First, successful punishment might involve pain or some other negative sensory

experience. But punishment involving pain fails insofar as the subject enjoys it. Second, successful

punishment might involve deprivation. But punishment involving deprivation fails insofar as the

subject does not care about the thing of which he is deprived, and so does not have some sort of

negative experience. Third, while successful punishment must involve something that the subject

does not want to be subjected to, that something is not just a subtraction on the level of the

will. For that subtraction will take the form an unwelcome sensory experience (e.g., physical pain

or mental suffering), the deprivation of something good, or both. 37

Perhaps this is a more precise formulation of the success criteria for punishment: Successful

punishment of D hurts or hinders D in the sense that it injures, damages or disadvantages him. This

covers successful punishments involving physical pain, mental suffering, deprivation, and

something contrary to their wills. But as hurts or hinders is slightly anachronistic, I will to use 38

harm as shorthand. In any case, the upshot is the same: punishment loses its point if it is not

meant to hurt or hinder or harm. And this defining aim distinguishes punishment from many other

actions that are harmful and are known to be harmful, but are nonetheless not done to be harmful. 39

For example, we might incarcerate a mentally ill person because she poses a danger to herself or

others, but if we could adequately address this concern through less painful means (e.g., therapy

and medication), we would prefer to do so. On the other hand, successful punishment harms, 40

injures, damages or disadvantages the subject. And because attempts aim at success, punishers aim

to cause some harm.

35 The locus classicus for this view is J.D. Mabbotts 1955 paper, Professor Flew on Punishment. 36 Finnis, p. 98. 37 Punishments justifying aim might be a subtraction on the level of the will that removes from the unfair

advantage the wrongdoer gained in exercising too much freedom or autonomy. See ibid. But defining punishment as the suppression of the will rather than as the infliction of harm ignores an element of our shared conception of punishment and so fails to capture the phenomenon whose justification is at issue.

38 This formulation also avoids the overly moral connotations of evil. 39 J.R. Lucas, On Justice (Oxford: Clarendon Press, 1980), p. 125. 40 [Protective custody per Lucas?]

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3. An Objection and Additional Feature

At this point, I will pause to consider an objection to the idea that punishment necessarily

involves an intentional action and an intended result. That is, punishment allows for a certain

division of labor that complicates matters. For in the paradigmatic criminal case, there is a clear

division of labor such that a judge determines and imposes Ds punishment, which is carried out by a

jailor. In this case, the judge develops the intention to harm D as punishment and determines the

amount of harm to be imposed, but his control over the nature and extent of harm done to D is

indirect. The jailor, on the other hand, has direct control over the harm done to D, but might not

fully share the judges intention. And this raises a cluster of questions about keeping intention alive

in a bureaucratic setting. But the challenge can be met. In the easiest case, both judge and jailor

share the intention to harm D as punishment although that is not necessary. Intentional collective

action does not require that an intention be shared by every individual involved in carrying out the

intended activity (e.g., punishment), so long as the actors are obligated to the others to do their

part. And this can explain the the role of intention in punishment even in a highly bureaucratic 41

setting like the modern Anglo-American criminal justice systems. 42

Whats more, institutions like the state are moral agents that can and do act intentionally. As

Robert Goodin taught us, the state is capable of embodying goals, values, and ends; [and] it, too, is

capable (through its legislative and executive organs) of deliberative action in pursuit of them. To 43

illustrate this point, imagine that the state levies a mileage tax on car owners to cover the cost of

road repairs. Some drivers think that this is a punitive tax that punishes them for driving, and some

legislators might even agree. This is a perfectly intelligible claim, even if it is mistaken (say, because

the mileage tax replaces a gasoline tax that failed to cover the cost of road repairs as drivers started

choosing more fuel-efficient vehicles). The legislature is an agent with an internal decision-making

mechanism constituted by the rule-based processes under which it operates. And for present 44

purposes, this perfectly mimics the internal decision-making process that defines moral agency in

41 See Margaret Gilbert, Sociality and Responsibility: New Essays in Plural Subject Theory (Lanham, MD: Rowman & Littlefield, 2000), p. 494-5.

42 Admittedly, intentionally administered more clearly covers cases where the punishers control over the course of harm is present but indirect. But in suggesting such a division of labor, Harts formulation fails to capture the essence of punishment in direct, non-institutional cases. And if we construe intentionally inflicted broadly as a complex, instrumental action, we can use this formulation to cover both the direct and indirect cases.

43 Robert E. Goodin, The State as a Moral Agent, in Alan Hamilton and Philip Pettit (eds.), The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell, 1989): pp. 123-39, p. 129.

44 Ibid., p. 129-30.

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individuals. (We even have evidence of both the deliberative process and the legislatures intention

in enacting the mileage tax in the form of the legislative record.)

But the internal decision-making process of institutions like the legislature is not exactly like

that of individuals because individuals can make spontaneous decisions. Legislative action, however,

cannot be taken without formal consideration and so must be deliberate. And this feature of

legislative action points us to an additional feature of punishment. Namely, punishment is also a

deliberate action. And it might be distinguished from related phenomenon like provocation because

provocation involves spontaneous action. Punishment and provocation both have a punitive spirit,

and this provides the conceptual link between the two phenomena. But while a provoked person

sees red and spontaneously strikes back, a punisher is supposed to see clearly and apply a

measured strike (even if the measure is incorrect). And measured implies an element of care and

control in the special sense that a measured action is moved and guided by undefeated reasons as

one sees them upon consideration. That is, it is not enough for a would-be punisher to intentionally 45

inflict harm on D. She must have considered the matter, including reasons for and against punishing

D and, if she decides to punish D, the amount of harm to be inflicted. So provocation is not

punishment because its spontaneity precludes such measurement. And thus, it is not punishments

deliberateness that makes it distinctive. Punishment must be deliberate, but it must be deliberate

because it must be measured. We might say in summary that punishment does not require a judge,

but it does require a judgement.

4. The Grounds for Punishment

The next feature of punishment up for discussion concerns the grounds of punishment

i.e., what it is that punishment is for. The first thing to note, although it might go without saying, is

punishment must be for something. For means on the grounds of or by reason of, and so if

Smith says that Jones is being punished, Smith must be prepared to answer the question For

what? So while Smith might not know the reason for Joness punishment, he gives up the right to 46

use the idiom of punishment if he denies that there is any such reason. Second, punishment cannot 47

be for just anything. One must have the right sort of reason for harming someone if that is going to

count as punishment. For example, it would be absurd to say that Smith is punishing Evans because

45 Joseph Raz makes the broader point that, in general, we control actions by guiding them in light of what we take to be reasons for those actions. Raz (2010), p. 435.

46 Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), p. 58.

47 Ibid.

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the sun is shining -- both because the suns shining is (normally) a good thing and because Evans (nor

anyone else) had anything to do with it. If Smith is punishing Evans by giving him a beating, the

beating must be for something that someone has done. But it would be absurd to say that Smith is

punishing Evans for doing something that is unqualifiedly good (e.g., doing him a favor while

stringently observing all applicable rules and regulations). So, then, punishment must be for

something someone did, and that something must be on the wrong side of being right and good.

What more can we say about the grounds for punishment? Hart suggested that punishment

is for an offense against legal rules (i.e., a crime) in the paradigmatic legal case, but he also

admitted that it could be for breaches of non-legal rules or orders (punishments in a family or

school) because he recognized that more rudimentary rule-regulated practices within groups such

as a family, or a school, or in customary societies whose customs may lack some of the standard or

salient features of law (eg, legislation, organized sanctions, courts). But what Hart does not 48

recognize, at least not explicitly, is punishment exists outside of institutions and other

rule-regulated practices. Why? I think the answer is that Hart seemed to think of punishment as

essentially a matter of applying secondary rules specifying what officials (or others) may or must do

when an applicable standard-setting primary rule has been broken. Secondary rules (e.g., If D 49

violates the rule forbidding x, imprison him for 5 years) only apply once a primary rule (e.g., X-ing

is forbidden or Do not x) has been violated. And insofar as punishment involves the application of

secondary rules, it must also involve an offense against a primary rule because the very logic of

secondary rules requires that the violation of a primary rule is among the grounds for their

application. Whats more, Hart had a special interest in the institution of criminal punishment, and

punishments within a rule-based practice or institution (like criminal punishment) are

paradigmatically for the violation of some primary rule declaring that certain actions are not to be

done. Thus, an offense against primary rules declaring that certain actions are not to be done must 50

be among the reasons for applying punishment within a rule-based practice in standard cases of

institutional punishment.

But legal and institutional punishments are not paradigmatic cases for the purposes of

focusing our justifying efforts. In defining punishment, we should pay special attention to cases that

have the essential features that distinguish punishment from related phenomenon and draw our

48 Hart (2008), p. 5. 49 Harts discussion of the preliminary question of why certain actions are forbidden by laws and so are

made crimes or offenses supports this view. See Hart (2008), p. 6-8. 50 Even within a rule-based system, retrospective punishments for actions prohibited after the fact are

perfectly possible. But these are sub-standard cases of institutional or legal punishment.

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attention to those features calling for justification. Forms of punishment with additional, optional

features can be distracting especially when those extra features also call for justification. And

legal punishment is a particularly complicated phenomenon that raises pressing questions about the

rights and responsibilities of the state in relation to its citizens, including: What burdens may the

state justifiably impose on its citizens? What justifies the imposition of such burdens? and When is

the impositions of such burdens obligatory? These questions only increase the complexity

surrounding punishments justification and draws our attention away from the distinctive problems

that make the justification of punishment so tricky. And so we are better off thinking about what

punishment must be for without muddying the waters with talk of laws, crimes, and institutions.

Still, Harts formulation of this feature of punishment (that it must be for an offense)

points us in the right direction. As Hart taught us, laws (or other positive rules) that forbid certain

actions create offenses or legal wrongs for which punishment may be applied. And punishment 51

may be applied for such legal wrongdoing. But punishment can equally be applied for actual or

supposed wrongdoing (broadly construed) that is not prohibited by any positive rule. The common 52

thread is punishments retributive logic: punishment involves responding in kind, giving ill (i.e.,

harm) for ill (i.e., wrongdoing). And this retributive element is a feature of punishments logic

always, and not only in standard cases that distinguishes punishment from related

phenomenon involving the intentional infliction of harm, like general deterrence and self-defense.

5. The Person Punished

The final feature of punishment I will discuss here flows from, but is not itself a part of, the

idea of punishment. That is, it is natural to think that punishment for a wrong done will be of the

wrongdoer. And indeed, in paradigmatic cases, punishment is imposed on an (actual or supposed)

wrongdoer for his (actual or supposed) wrongdoing. When someone undertakes punishment 53

(which is, of logical necessity, for some wrongdoing), we look to the person who did that wrong and

expect that punishment will fall on him. And the expectation that punishment will be of a wrongdoer

for his wrongdoing is part of the idea of punishment. So imagine that Smith says, Jones wrongfully

struck Evans, and weve got Evans here. Weve got to punish somebody for this! So who do you think

it should be? We would conclude that Smith is more than a little confused about what

51 Hart (2008), p. 6. 52 The question of what makes the action wrong in the first place is beside the point. Gardner on Hart xvi. 53 If we replace offender and offense with the broader notions of wrongdoer and wrongdoing, Harts

formulation (i.e., that in the standard case, punishment is of an actual or supposed [wrongdoer] for his [wrongdoing]) hits just the right note. Hart (2008), p. 5.

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punishment means. Now, Smith might be mistaken about who (if anyone) has struck Evans, about

whether striking Evans was wrongful, or both. But if he believes that a wrong has been done by 54

Jones and that such wrongdoing is a reason for imposing punishment on someone, he will believe he

has a reason for punishing Jones in particular.

That is not to say that punishment is only punishment if it is imposed on a wrongdoer. For 55

we can, without absurdity, punish someone for something he has not done. For example, we might

punish a person known to be innocent in the place of the wrongdoer (vicarious punishment) or

punish a group of people for some wrong done by just one of its members (collective punishment).

But these are sub-standard cases of punishment that require additional justificatory maneuvers. If a

wrong done is a reason for inflicting harm on someone in particular, that person must have (or have

had) some relationship to that past wrongdoing that explains why harm should be inflicted on him.

And any plausible account of that relationship will begin with the doing of the wrong done. So 56

although the idea of punishment does not specify on whom punishment may imposed, its retributive

logic focuses our attention on the wrongdoer. And we only look away and start thinking about

punishing someone else if we cannot find the wrongdoer, or else find that he is somehow immune to

punishment.

III. CONCLUSION To recap, I have argued that punishment has at least five features:

1. Punishment involves intentionally harming D.

2. Punishment involves intending to harm D and having a certain sort of control over

the nature and extent of that harm.

3. Punishment is measured and deliberate. 4. Punishment is imposed for (i.e., on grounds of) past wrongdoing.

5. And in paradigmatic cases, punishment is imposed on a wrongdoer for his

wrongdoing.

54 Note that Harts formulation accommodates punishment by mistake (i.e., punishment of a supposed, but not actual, wrongdoer) as it should. Ibid.

55 Cf. Quinton. 56 The term guilt designates the sort of relationship that a wrongdoer has (or had) to a wrong he has already

committed. John Gardner, Introduction, in H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford and New York: Oxford University Press, 2008): pp. i-liii, p. xxvii. But any further discussion of guilt is outside the scope of this paper.

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And although punishment shares many of these features with other related phenomenon (including

tort liability, provocation, general deterrence, self-defense, and blame and apology), the

combination of the first four logically necessary features makes punishment a distinctive

phenomenon. For example, punishment and provocation share features (1), (2) and (4), but

provocation lacks feature (3) because it is done spontaneously (and without measurement). And this

third feature of punishment is important because it raises questions about the extent (as well as the

existence) of harm inflicted as punishments and the reasons for its infliction. 57

But what makes the problem of punishment so tricky is the combination of features (2) and

(4). That is, punishment is not just a matter of taking some action on grounds of past wrongdoing.

For unlike related phenomenon like blame and apology that involve an intentional action taken on

grounds of past wrongdoing, punishment involves the intentional infliction of harm. Blaming

someone involves doing something (e.g. adopting a certain attitude) in response to something

negative about a person or his behavior (e.g., past wrongdoing), and that response might be hurtful.

But blame does not even have to be expressed, so it only shares feature (4) with punishment. The

imposition of punishment is also distinguished from the imposition of liability because although the

latter action typically involves intentionally causing some D to suffer a measured amount of harm

(often on grounds of past wrongdoing), the harm done to D is often an expected but unintended

side-effect. So the imposition of liability has features (1), (3), and often (4), but lacks feature (2). On

the other hand, punishment loses its point if it is not meant to hurt. The intention to harm is

essential to the very idea of punishment. So in order to adequately defend punishment, one must

justify not only the intentional harming involved in punishment, but also the intention to harm.

Moreover, punishment is not just a matter of intentionally inflicting of harm, but of

deliberately inflicting a certain measure of intended harm on grounds of past wrongdoing. And this

feature distinguishes punishment from related phenomenon like general deterrence and

self-defense. For example, self-defense involves intentionally inflicting harm on some D, but the

harm is inflicted to protect from future wrongdoing and not on the grounds that a wrong has already

been done. Likewise, we might deter future wrongdoing by intentionally inflicting some measure of

harm on some D. But that infliction of harm does not count as punishment if the only reason for

harming D is the expected deterrent effect even if D is a guilty wrongdoer. Even if deterrence

shares features (1), (2), (3), and even (5) with punishment, it is not punishment without also sharing

57 Thus, as Adam Kobler points out, [w]e must justify not only whether or not a person is punishment but also the amount of punishment we impose. Adam J. Kobler, The Comparative Nature of Punishment, Boston University Law Review 89 (2009): pp. 1565-1608, p. 1568.

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feature (4). Now that is not to say that deterrence cannot be among the justifying aims of

punishment -- only that it cannot be its only aim. Punishment is distinctive because past wrongdoing

must, at a minimum, be among the positive reasons for its imposition. Thus, to justify punishment

rather than deterrence or self-defense, one must justify the infliction of harm for wrongdoing, and

that requires accounting for an element of retribution in punishments distribution.

One may object that the question How do you justify punishment? is a red herring, and

that the real question is Why do we incarcerate convicted criminals? But this may just be evidence

of a philosophical difference: the actions we perform can be criticized or justified in many ways, and

some people are interested in acts as we perform them (including the reasons for (and against)

performing such acts), while other people are interested in the way we think about the acts we

perform and the reasons we think we have for (and against) performing them. Hart may be among

those who are interested in whether the actions we perform under the practice we happen to call

punishment are morally permissible. But here, I am interested in what lies behind our actions, and

for the category of actions that actors (or spectators) take to be instances of punishment, whether

we have the reasons we take ourselves to have for engaging in that phenomenon. And I am

especially interested in the question of why accounting for that phenomenon the phenomenon of

punishment is so fraught. Here is my answer: the problem of punishment is fraught, not because it

raises separate questions that call for separate treatment, but because the combination of its

logically necessary features brings together two vexing philosophical problems: (A) justifying

intended harming and (B) explaining why and when past wrongdoing counts as a reason for future

action. And although I will only diagnose the problem with Harts approach to punishment here, it

seems to me that much of the confusion surrounding punishment can be attributed to our tendency

to overemphasize one of these problems at the expense of the other.

Hart seemed to appreciate the significance of the features of punishments that give rise to

problem (A), but he failed to appreciate that punishment has a distinctive retributive logic that

[necessarily] gives rise to problem (B). And so he mistook the problem of punishment for a more

general problem and asked us to explain the rational and moral status of our preference for a

system of punishment under which measures painful to individuals are to be taken against them only

when they have committed an offense. But that is not punishment it is merely a kind of general 58

deterrence resembling punishment because it involves harm that, by virtue of an independent

principle of distribution, is inflicted only on wrongdoers. And this practice can be justified without 59

58 Hart (2008), p. 6 (emphasis added). 59 Hart erroneously characterizes this principle of distribution as retributive. Ibid., p. 9. But it is not even

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reference to retribution precisely because it lacks one of the logically necessary features of

punishment. The challenge for the would-be defender of punishment is to explain the rational and

moral status of our preference for a system of punishment under which measures intended to be

painful to individuals are to be taken against them on grounds of past wrongdoing. And Harts 60

different questions approach evades this challenge, prematurely removing the fraughtness from

punishments justification so that he ultimately ends up advocating the replacement of punishment

with another practice. 61

In closing, I want to note that although a logically adequate defense of punishment must

account for its retributive logic, it does not follow that a would-be defender of punishment must

accept the retributivist proposition that there is some intrinsic value in the suffering of guilty

wrongdoers. That is, of course, one way of accounting for the element of retribution in 62

punishments distribution. And although the vulgar retributivist view that punishment was justified

by the intrinsic value in deserved suffering was anathema to Hart, some recent strands of

retributivist thinking might have appealed to him. For example, the view that the infliction of harm

on the guilty has some intrinsic value because it expresses deserved blame or condemnation is

compatible with the possibility that punishment is only justified if it also produces sufficiently good

consequences. But this requires abandoning the Benthamite conviction that suffering is always and 63

solely intrinsically bad, and a defender of punishment sympathetic to Hart need not give up that

conviction. For instance, he might follow the line of thinking put forward by John Rawls in his essay

Two Concepts of Rules and argue that a distributive rule that is genuinely retributive in its

application can be wholly justified by its good consequences. Or he might argue that, in certain

circumstances, wrongdoing is a reason to make a guilty wrongdoer suffer because the suffering of

the guilty is less intrinsically bad than the suffering of the innocent, though in no way intrinsically

good. In my view, the third line of argument is most promising, but I will leave the task of mounting a

morally and logically adequate defense of punishment for another day or for another author.

slightly retributive because the principle merely limits the distribution of punishment to persons guilty of wrongdoing, and wrongdoing does not count as a positive reason for punishment. Ibid.; see also Gardner, p. xxv.

60 Hart (2008), p. 6. 61 As John Gardner points out, the practice Hart ends up advocating resembles the practice of punishment in

maintaining the distinction between the guilty and the innocent in the distribution of suffering, but [it] is quite unlike the practice of punishment in not treating the (actual or supposed) wrongdoing of the wrongdoer, even in cases of guilt, as a positive reason why the suffering should be inflicted. Gardner, p. xxvi.

62 See, e.g., Lawrence H. Davis, They Deserve to Suffer, Analysis 32(4) (1972): pp. 136-40. 63 Gardner, p. xxix.

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