Abstract
One of the main barriers against a Utilitarian justification of punishment is a widespread criticism that if punishment is evil justified by the good it can achieve, then the state could use persons as a means to an end in pursuing this good. This opens the door, at a theoretical level, for the potential punishment of innocents, disproportionate punishment and failure to respect persons as rational and responsible agents. Further, critics argue that any considerations of security or utility guard against the perceived risks contingently, without intrinsic commitment to respecting persons as ends in themselves. This article addresses the criticism fundamentally by returning to Bentham’s original writings and demonstrating that a principle of equality is embedded in the greatest happiness as an end of government. The principle of equality can theoretically be developed using the tools of Bentham’s political theory, including his commitments to democracy, to the elimination of pain and to the differentiation between real and fictitious entities, to ensure that a Utilitarian theory of punishment, as part of its premise, would be constrained from using persons as mere means. Further, building on the equality of happiness, the article proposes an individualistic justification of punishment that responds to the traditional accusations of innocents’ punishment and excessive punishment, and ensures the respect of persons as rational and responsible agents.
Highlights
Utilitarianism characterises punishment as an evil that inflicts pain and permits the state to inflict it only if it excludes a greater evil, namely the commission of offending in the future
There is value in characterising punishment as pain and an evil to be used by the state as minimally as possible, one of the main barriers against a Utilitarian justification of punishment is the widespread criticism that it would permit the use of persons as a means to an end and sacrifice an individual’s interests for the supposed good of a community
The third to fifth sections demonstrate how the principle of equality and the individualistic justification of punishment might guard against traditional criticism of Utilitarian punishment in three respects: the punishment of innocents; excessive or disproportionate punishment of the guilty; and the reasons offered for obedience to the law
Summary
The accusation that Utilitarianism allows for the sacrifice of individuals is usually associated with the common interpretation of the greatest happiness principle as aggregative. In every other venue, the state must recognise, respect and treat each individual’s chance to pursue happiness to be of equal value Such equal self-determination is inexorably connected to being a human, a real entity who feels pain and pleasure, and to the fact that each individual is ‘the only proper judge of what with reference to himself is pleasure: and so in regard to pain’.32. Equal recognition and respect require the state to see every individual not as a number equal to one in an aggregative equation, but as a real entity with a subjective conception of pleasures and pains, with equal capacity and desire for happiness Postema expresses this point in what he calls an individualist conception of happiness, acknowledging that individual people suffer, people flourish, people take delight in or are distressed by the events of their lives, and these experiences cannot be abstracted from the significance they give to human lives. If we turn to the authority to punish, the question becomes: what is the state’s justification for imposing pain and suffering on offenders?
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