A NOTE ON UTILITARIAN PUNISHMENT

Abstract

A STANDARD, anid now traditional objection to utilitarianism, is that it entails unjust punishments. It is replied to this objection, that the principle of utility should be construed as a test, not of particular punishments, but of systems or institutions of punishment, and that that institution of punishment which we commonly regard as just is one which in fact has the best utilitarian justification. Objections to this reply of the kind I have urged elsewhere 'that this in fact is not true, that in any case it is extremely unlikely that the one (just) system should be equally useful in all contexts, and that it is extremely difficult to test the utility of such diverse systems of punishment as prevail and have prevailed in civilised countries-tend to be ignored, if not denied. Hart's recent discussion illustrates this well.2 This suggests that there is need for the critic of utilitarianism to restate his case more simply and in a way which does not permit it to be circumvented by unsubstantiated claims to empirical knowledge. Such a restatement presents no difficulties. Surely the utilitarian must admit that whatever the facts of the matter may be, it is logically possible that an ' unjust ' system of punishment-e.g. a system involving collective punishments, retroactive laws and punishments, or punishments of parents and relations of the offender -may be more useful than a 'just' system of punishment ? If it is not thought to be logically possible, then reasons why need be offered; but none are apparent. Yet to expose the inadequacy of utilitarianism in dealing with the problem of justice, only the logical possibility of such an ' unjust ' utilitarian system of punishment needs to be indicated. The utilitarian can, of course, take the bull by the horns and argue that if it ever were to become apparent that some 'unjust' institution of punishment -has a sound utilitarian justification, then it would be superstitious rule worship to adhere the just system. But as far as I know, only J. J. C. Smart, among the contemporary utilitarians, is happy to adopt this ' solution '.