Topics in Moral and Political Philosophy. Punishment. Authority – Punishment. Political authority : The state has the right to impose obligations on its subjects and to use coercion in order to enforce these obligations. Two claims : the state has the right to rule;
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Political authority: The state has the right to impose obligations on its subjects and to use coercion in order to enforce these obligations.
Legal punishment “involves the imposition of something that is intended to be burdensome or painful, on a supposed offender for a supposed crime, by a person or body who claims the authority to do so” (Antony Duff).
Legal punishment is justified because punishing those who break the law produces positive consequences:
1) Consequentialism cannot account for two requirements:
2) Consequentialist punishment does not treat the guilty as a rational and responsible moral agent
We should not treat persons “merely as means…but in every case as ends also” (Immanuel Kant, The Metaphysic of Morals, 1797)
The “general justifying aim” of punishment is given by the fact that punishment produces good consequences. But there are constraints to the pursuit of this aim:
The wrongdoer is treated “like a dog instead of with the freedom and respect due to him as a man” (G. W. F. Hegel, The Philosophy of Right, 1821).
“The offender, by violating the life or liberty or property of another, has lost his own right to have his life, liberty, or property respected, so that the state has no prima facie duty to spare him, as it has a prima facie duty to spare the innocent. It is morally at liberty to injure him as he has injured others, or to inflict any lesser injury on him, or to spare him, exactly as consideration both of the good of the community and of his own good requires. If, on the other hand, a man has respected the rights of others, there is a strong and distinctive objection to the state’s inflicting any penalty on him with a view to the good of the community or even to his own good.” (W.D. Ross, “The Right and the Good”)
“Retributivism … is the view that punishment is justified by the desert of the offender. The good that is achieved by punishing, on this view, has nothing to do with future states of affairs, such as the prevention of crimes or the maintenance of social cohesion. Rather the good that punishment achieves is that someone who deserves gets it” (Michael Moore, Placing Blame. A Theory of Criminal Law, p. 87).
Everyone who participates in a reasonably just, mutually beneficial scheme of social cooperation has an obligation to bear a fair share of the burdens of the scheme provided that:
Criminal punishment is deserved in the sense that it is the only way to “restore the proper balance” between benefits and obedience.
NB: Mala prohibitavs mala in se
Censuring the conduct declared wrong by the state is owed:
The communicative theory has both a forward-looking and a backward-looking dimension: