expected to do so.
In other words, punishment should effectively deter those who would disrupt the social order. A dictator who allows people to vote in free and fair elections, regardless of whether it undermines the government’s authority, would be doing the wrong thing. This assessment does not carry a moral charge with it. In a moral sense, it would be a good thing for the regime to be replaced, peacefully (or perhaps not), with a democratically elected ruler. Nonetheless, it is a kind of value judgment. An autocratic leader who allows for such a thing would be a bad autocrat.
To be sure, one can always ask whether an action, including an action taken by the state, is legal. That is a purely factual question or, when the law is ambiguous, an interpretive question for appellate courts. The police who arrested King were enforcing the law as written. This does not answer the question of whether they
3 Flanders argues, because of “the sheer number of conflicting ideas about state punishment, that there is a good case to be made for political liberalism as a political philosophy, and, accordingly, for defending what political liberalism says about the proper function of and limitations upon punishment” (2019, 523). I claim that the justifiability of a given scheme of institutional punishment depends on the justifiability of the political aims, but Flanders claims that “the sheer variety of political-philosophical options when it comes to punishment” entails that we can only commit ourselves collectively to what we can reasonably accept, which is a liberal arrangement (539). This assumes, among other things, that the relative rightness of competing aims of punishment cannot be determined, like our different individual concep- tions of the good. Flanders talks about it as a “reasonable pluralism” and “the possibility of differing, yet sensible views about what we should be doing when we punish people” (540).
However, if there are more and less just political arrangements – e.g., if a rights-based liberal- ism is, unlike communism, a form of oppression and self-alienation, or vice versa – then we should not remain agnostic regarding our collective conception of the good. Whether this can be accomplished is the topic for another book.
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ought to have arrested him. There is a difference between an action being legal and being legally justifed. The justificatory question is whether having that law and the accompanying punishment is a good way to further the aims of the state.
In many countries, these aims are often spelled out in their founding and govern- ing documents. Regarding the permit to demonstrate, for example, there was a deeper legal question of whether the law as enforced was consistent with the U.S.
Constitution as secondary law – namely, whether it violated prohibitions on dis- criminatory treatment (equal protection) or inhibited free speech. This is not yet a moral question – i.e., it is not a question of whether the aims of the state ought to be promoted – since primary and secondary laws may be unjust (more on this later). But it is an axiological question in a broad (nonmoral) sense, as indicated by the value-laden vocabulary of discovering what is best, most effective, or most consistent with our public values.
In Kantian terms, we are constrained by a hypothetical imperative in assigning specific legal punishments: if we adopt an end (protecting natural rights, support- ing communism, maintaining a dictatorship, and so on), it would be irrational of us not also to will the means to that end (Kant 1996a, 4:414–17). As Norval Morris puts it,
To fail to define our purposes for punishing any human being is to make Pilate’s choice; to define our purposes and yet to make no effort to test the capacity of our means to attain them is a similar though a lesser sin against the light. (1966, 634)
Once the aim of punishment is identified, we ought to do what we can to pursue it effectively. A system of punishment is rational if it maintains the state, and in that sense it is justified internally, relative to the aims of the state, rather than being judged against an external, moral standard.
Although this seems like a kind of relativism, a state can get things wrong even by this measure. For example, Germany prohibits Nazi symbols and Volksverhetzung (incitement of the people, or hate speech). By contrast, the U.S.
allows people to display Confederate flags and swastikas, and it allows white supremacists to express their views openly, with the idea that these are forms of free speech protected under the First Amendment. Both Germany’s and the United States’ policies are intended to support law and order, and their effective- ness at achieving that end can be evaluated and compared. One could make the case, arguing along with Mill, that such ideas should not be censored in Germany so that their wrongness can be exposed and people holding contrary, morally right ideas can sharpen their arguments, turning their positions into a “living truth” (1978, 32–34). But one could also argue, as Germany does, that forbid- ding Volksverhetzung is necessary, because of its particular history, to support democratic coexistence. Whether Germany’s policy of “defensive democracy”
is better than the United States’ policy, and whether there should be differ- ent policies given the countries’ different histories, is a contentious issue. We
The rational and the reasonable 59 should consider which approach will, under the circumstances, sustain a healthier democracy (since both Germany and the United States are democratic republics).
This is a judgment of value or rightness, but it is different from asking whether a state’s aims, statutes, and punishments are morally right.
Moral justifcation (2a): Just system
Talk of maintaining the state may sound authoritarian, and talk of preserving the social order may seem conservative. Whose order is being preserved? A state’s policies around punishment are usually, perhaps inevitably, shaped by its con- tingent legal history, including its biases. Consequentialists must be mindful of how easy it is to slide from the idea that a punishment is effective to the idea that it is morally right. Stop-and-frisk may be a useful police tactic, but it may also violate people’s rights. The claim that we ought to reduce crime sounds good until being a Black man in a white neighborhood is treated as a crime. Whether a punishment is morally justified, then, is separate from the question of whether the punishment is justified under the law: as Ted Honderich puts it, “Whenever a man is punished under a law, however acceptable the law, a moral justification may be dependent upon the rightness of the law but not upon the fact that there is a law” (2006, 19). Whether punishment not only effectively achieves the gov- ernment’s aim but is also morally justified depends partly on whether the system being preserved is a just system. Politicians who talk of “law and order” often ignore this question.
Immanuel Kant distinguishes the hypothetical imperative from the categorical imperative, the latter of which amounts to a moral constraint. We are uncondi- tionally required to act rightly regardless of the ends we have (1996a, 4:414–17).
Similarly, with regard to punishment, there are two distinct senses of “good”:
punishments can be effective and rational, given our aims (legal justification), and they can be right and reasonable, given the aims or ideals that we ought to have (moral justification). Rawls makes a similar distinction when he notes that we can evaluate practices or institutions against an independent (moral) standard, but that we can only evaluate particular actions within a practice against the rules of that practice (1955, 27). There is a difference between justice and the rule of law – a difference that Montesquieu, who tends toward relativism, seems not to recognize.
Legal punishment serves a particular function in maintaining the state.
However, if we talk about deterrence without identifying what kind of behavior is being discouraged or encouraged, then we do not know whether deterrence is a good thing. The Nuremberg laws effectively made German Jews stateless, and German citizens were legally prohibited from harboring or otherwise protecting them, but the deterrent effect in that case was a bad thing, since it facilitated unjust and inhumane treatment. Some consequentialists believe that utilitarian- ism is true and thus assume that any punishment that maximizes happiness (by means of general and specific deterrence) is good. But the connection must be
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made explicit and the goal justified – in this case, happiness as an intrinsic good – if the punishment that supports it is to be justified.4
Duff claims that the rightness of retributive punishment depends on whether society has identified the crimes it ought to identify, and more broadly on whether society is decent and the actions it prohibits are, in fact, wrong (2001, 35). This broader normative question about the political and legal system in which stand- ards of behavior are enforced is relevant for consequentialist theories as well.
Indeed, a punishment that effectively furthers the aims of the state is morally justified only if the aims of the state are worthy of pursuit:
2a) State-sponsored punishment is morally justifed only if the state itself is justifed and its laws promote a just arrangement.
Punishment should not only maintain the social order, but a just social order.
This criterion is about whether the ends (of justice) justify the means (of pur- posely imposing burdens on offenders). It must be added to ensure that punish- ment is not, for example, merely propping up an authoritarian regime or serving the personal interests of those in power, even if they are codified in the law and enforced by the government. Although such regimes would have the legal authority to imprison people who criticize the government or to prohibit free and fair elections, it would not be morally justified in doing so.5 If we relate this to the stipulative definitions in Chapter 1, we are evaluating whether the authority claimed by the governing power is legitimate in a thick, moral sense that goes beyond the mere legality of what it does.
This distinction is similar to the one that John Finnis makes when he talks about the “focal meaning” of law. Breaking with some other natural law theorists such as Aquinas and Augustine, Finnis admits that, although human law ideally ought to reflect natural law, a law that falls short of that ideal may still be a law.
Unjust laws are laws, but they are not what is most properly called law (2011, 9–11, 277–80). Similarly, I am claiming that, if a system of punishment effec- tively maintains the state, it is legally justified punishment. But if the state itself is
4 I have my doubts about the rightness of utilitarianism when it comes to the general justify- ing aim of punishment. Like Kant, I do not think it is nonsensical to ask whether we ought to maximize happiness, because happiness is only conditionally good. I am more inclined to a rights-based view, which is why I will often illustrate the two-tiered model of punishment with reference to liberalism. I do not have the space to pursue this here. As I mention in the Conclusion of this book, justice and the proper political arrangement are topics for another volume, one on political theory rather than the philosophy of law.
5 Mabbott elides this distinction in defending his version of circular retributivism:
About the government, whether it is good or bad, I do not enquire. X has broken a law.
Concerning the law, whether it is well-devised or not, I have not asked. Yet all these ques- tions are surely relevant before it can be decided whether a particular punishment is just.
It is the essence of my position that none of these questions is relevant. Punishment is a corollary of law-breaking by a member of the society whose law is broken. (1939, 160–61)
The rational and the reasonable 61 unjust, then the institution does not have all the characteristics that a justified sys- tem of punishment ought to have. One way of putting it is that such punishment is legal but not lawful. The latter term includes different, more robust normative assumptions – namely, concerning the rightness of the state’s aims. An unjust but legal punishment is “aptly referred to by a secondary or non-focal use of the term
‘punishment,’ a term which in its focal use has a proper role in any satisfactory account of what is required for human well-being” (Finnis 2011, 266).
It seems strange to me that one could try to justify punishment without also talking about the function it serves in furthering the aims of the state. Consider moral education theory. If the purpose of punishment and the threat of punish- ment is to make criminals and potential criminals better people, then we must identify some standard of what is “better.” An authoritarian theocracy that tries to indoctrinate its citizens into a particular religious dogma may, on its view, be making its people better. Whether they are right about that depends on several things, including whether their religious view is correct, whether that method of educating people is morally appropriate, and whether the government should be in the business of proselytizing. Take another example: societal safety-valve theory. If the purpose of punishment is to allow people to express their socially disruptive emotions peacefully and in ways that do not disrupt the social order, one would first have to determine whether the social order is worth preserving.
For example, China is very good at making sure that political speech is tightly controlled so that the Communist government is insulated from criticism. That may be an effective means of control, but whether that is a good thing depends on whether the Communist system ought to be preserved, whether there are such things as rights to freedom of speech and the press, and so on. One cannot say, then, that a punishment is good if it assists in people’s moral education or if it controls disruptive emotions without answering a series of questions at the institutional level.
Moral justifcation (2b): Not excessive
A second condition of punishment’s reasonableness is that the imposed burden must not be excessive. I have assumed from the outset that intentionally harming someone is prima facie wrong. Some philosophers have attempted to justify this claim with various arguments. For example, Mill bases utilitarianism on the claim that “pleasure and freedom from pain are the only things desirable as ends,” so actions are “wrong as they tend to produce the reverse of happiness” (2001, 7).
The prima facie wrongness of harm can be outweighed by some greater benefit, but causing avoidable harm or harm that is not somehow worth it is intrinsi- cally bad. However, there is something peculiar about giving reasons for why we should not intentionally harm other people. If it does not strike us already as wrong, an argument is unlikely to convince us. As Emmanuel Levinas argues, the very attempt to justify suffering presupposes the moral obligations we have to others, in the sense that justifying ourselves before others (even hypothetical others) is a normative moment that testifies to their status as morally considerable
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persons whose suffering should matter to us. Rather than any propositional argu- ment, that ethical demand to explain our actions presupposes that they have a different moral status than rocks and trees, and that we are obligated not to harm them (Levinas 1997, 115–18; Levinas 1998, 94).
Punishment is intentionally imposing burdens on someone because they vio- lated a rule. The consequences of the punishment support the state, so, when the aims of the state are morally justified, the prima facie wrongness of intentional harm is overridden by a more pressing obligation to maintain a just arrangement.
If intentionally harming people is prima facie wrong, however, then the state can impose only the burdens that are necessary to further the state’s aims. Jeremy Bentham puts it simply: “all punishment is mischief: all punishment in itself is evil. … it ought only to be admitted in as far as it promises to exclude some greater evil” (1970, ch. XIII, §2 [p. 158]). Therefore, the prima facie obligation not to cause intentional harm places a side constraint on punishment, even if a more severe punishment would also further the aims of a just state:
2b) State-sponsored punishment is morally justifed only if there is no less harmful alternative that would as effectively maintain the state.
Norval Morris refers to this as the principle of parsimony regarding criminal pun- ishment: the least harm should be imposed that will as effectively achieve the social end that we want to accomplish by means of the punishment (N. Morris 1974, 60–62; N. Morris 1977, 171; Tonry and Morris 1978, 445–46, 447;
N. Morris 1981, 258, 266; N. Morris 1982, 190–91; Morris and Tonry 1990, 104).6 The fact that we could deter stealing by cutting off the hands of convicted thieves does not mean that such an extreme punishment is morally justified. Stiff penalties short of mutilation would probably deter all those who are able to be deterred. And even if some marginal increase in deterrence accrued with such extreme penalties, it would also produce other costs, such as lack of respect for a government that would do such a thing to its people. As Montesquieu says,
“Every penalty that does not derive from necessity is tyrannical.” It treats legal authority as “a pure act of power” rather than a justified attempt to maintain the public order (1989, Bk. XIX, ch. 14 [p. 316]).
The previous two conditions – that punishments should enforce a just system and that they should not be excessive – are each necessary for punishment to be morally justified, and they are jointly sufficient:
2) State-sponsored punishment is morally justifed if and only if (a) the