Sept. 2: third Phil 135 lecture

9/2

recap of two types of justification and their problems

recap of “fair play” theory and its problems

Another alternative: a view that sees punishment as *communicating* serious condemnation of criminal conduct. (viz. Anthony Dunn (sp?))  Explains the typically public nature of punishment.  But how can we explain move from a) censure to b) causing suffering? AM says we can’t: logically independent.  (No room from pragmatic accounts here, it seems: reinforcement, effectiveness.)

Cites H.L.A. Hart 1930 article which suggests a way to combine Cons. and Retrib.: if they answer two different questions, we can. We should separate 2 questions when trying any justification:  1)  general justifying aim, i.e. what justifies the main purpose of a practice?  But then, others: 2) the q. of distribution: i.e. how do we/can we implement it?  e.g. who can we punish and how much?   (Can separate other questions this way too: Why private property? How and who gets it?)

So, Cons. answers 1) and Retrib answers 2)    e.g. we punish to deter, which the state does most efficiently (1); but we only punish proportionally (2).

Retrib’s restraints are deontological: what we ought to do (independently of consequences).  Hart prefers to emphasize the notion of fairness in Retrib (not vengeance). Not same as “fair play” theory, which is a poor explanation of criminal motives.  But what’s the content of this “fairness”? We can tap into elaborate theories of fairness from other sources: e.g. the “gotcha” principle: if we say X is required, and you plan for that, we can’t change in midstream.  (Notions of promising and implied promising: if law is to guide, it has to be predictable and consistent.)

But can general notions of fairness inform us about proportionality? To some extent: we are steered by it in our calculations of choice (e.g. to kill the person we robbed, if the punishment of theft is death, as in England 18th c.)  We can calculate “roughly same wrong” to equal “roughly same punishment.”  But we have trouble calculating “how much punishment?” goes with “This kind of crime.”  Which is why we have so much variation...even if we followed logic, there’s no clear logic to follow!

Next time: justifying legal regulation per se.  Paternalism and others.