Account Of Punishment Research Articles

Punishment as Medicine in the Thought of St. Thomas Aquinas

Punishment as Medicine in the Thought of St. Thomas Aquinas Sr. Elinor Gardner O.P. A man who is unjust, is thoroughly miserable,the more so if he doesn’t get his due punishmentfor the wrongdoing he commits. (Plato, Gorgias 472e) He wounds as he heals. (Job 5:18) IN 1953, POPE PIUS XII addressed a gathering of Italian jurists in Rome, observing that “most modern theories of penal law explain punishment and justify it in the last resort as a protective measure.”1 This deterrent function, along with attempts to reform, he said, fail adequately to explain punishment, the ultimate purpose of which “must be sought on a higher plane,” namely, the restoration of that order which has been upset in the commission of a crime. Only “this more profound understanding of punishment” can get us “to the heart of the matter,” to the sacredness of the law itself, “so that whoever breaks it is punishable and will be punished.”2 Pius XII was responding to a type of humanist thinking about punishment in vogue in the first half of the twentieth century.3 Philosopher Michael Davis notes that in the 1960s, [End Page 1] the kind of theories critiqued by Pope Pius, C. S. Lewis,4 and others suffered a “long and steep decline.”5 In the 1970s, “preventive theories of punishment” gave place to various forms of what came to be called “retributivism.”6 In the United States, this revival of interest in the retributive meaning of punishment was legal as well as philosophical, being reflected in debates following the 1972 and 1976 Supreme Court decisions on the punishment of death.7 Retributivists maintain that the defining feature of punishment is that it gives to wrongdoers something that they deserve because of a prior wrong.8 It is desert that justifies the infliction of harm on another person, which punishment necessarily involves. In response to retributivist arguments, others maintain that retribution does not define or justify punishment, and that harming another by punishing him can only be justified by looking to some good effect or effects to [End Page 2] be achieved through the punishment (the “nonretributivist” position). Although, as we will see, twentieth-century retributivism differs in important respects from classical accounts of punishment, its proponents often look to that tradition for support, and some of them find in Thomas Aquinas a compelling defense of just retribution. But is Thomas a retributivist? Although it would be a mistake to examine Thomas’s thought on punishment exclusively within the bounds of the contemporary categories (retributivist vs. nonretributivist), we begin there in order to highlight the present relevance of this study, and to see exactly where and why Thomas does not “fit in” to the contemporary dialogue, in order that we may better know the contours of his account and at the same time realize what contemporary explanations of punishment tend to omit. Ultimately we want to know what is the right way for a Christian to think about punishments: should we desire them as good, or should we look at them as necessary but unfortunate features of life, to be chosen only as far as is necessary to preserve the good order of society? In light of this general goal, this paper has three specific aims. It aims to show, first, that Thomas’s account of punishment is better described as “medicinal” than “retributivist,” and, second, that a correct understanding of the medicinal character of human punishments requires reference to the revealed truth of divine retribution. Finally, through these clarifications of the Thomistic account of punishment, the third aim of this paper is to highlight what is lacking in the contemporary debates, and thereby contribute to a more Christian view of the phenomenon of punishment. We will begin with an analysis of contemporary retributivism to pose the “retribution or medicine” question, after which we will turn to Thomas’s own account of punishment. After considering some difficulties with the use of “punishment” as a translation of poena, we will consider how Thomas defines this phenomenon, and the various ways in which it resembles medicine. This will bring us to the theological perspective, which I will...

We are More Than our Executive Functions: on the Emotional and Situational Aspects of Criminal Responsibility and Punishment

In Responsible Brains (MIT Press, 2018), Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions (MWS) that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture of cognitive capacities and mechanisms—thereby leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: (1) role of emotions in moral judgments and behavior; (2) executive functions and normative criteria for legal insanity; (3) impact of adverse situational factors on executive functions; (4) Authors’ account of punishment and, especially, rehabilitation.

Extending the Limits of Blame

Erin Kelly’s The Limits of Blame offers a series of powerful arguments against retributivist accounts of punishment. Among these, I first focus on Kelly’s Inscrutability Argument, which casts doubt on our epistemic justification for making judgments of moral desert. I then discuss Kelly’s defense of the Just Harm Reduction account of punishment. I consider how retributivists might respond to and learn from these arguments.

“Each Punishment Should Be a Fable”: Punitive Analytics, The Punitive-City Diagram, and Punishment as Technology of Power in Foucault’s Works of the 1970s and 1980s

Michel Foucault’s Punitive Society lectures make clear that, for him, punishment presents a critical problem. On the one hand, Foucault struggles to develop a conceptual vocabulary adequate to punishment, and particularly to the prison-form as a penal development. On the other hand, the Punitive Society lectures clearly indicate the stakes of punishment. How, Foucault asks, might punishment focalize relations of power? How might it serve as a field of struggle? What does a punitive technology of power look like, if it exists? Indeed, across numerous works from the 1970s and 1980s, Foucault traces the varying place of penalties within penal and punitive tactics, showing how punishment reciprocates historical relations of power and problems of power. Yet it remains necessary to develop Foucault’s account of punishment, which is never formalized. In this paper, I develop punishment as a polyvalent technology. Foucauldian punishment may be an analytic, a technology, and—in the allegorical “punitive city” from Discipline and Punish—a diagram of power. I argue that Foucauldian punitive power seizes the body in the name of an authority or a reified power to subordinate individuals to that authority, and with an objective to correct the individual’s relation to a multiplicity. It operates “above,” at the level of, and in “fragments” of embodied individuals. Further, with Foucault’s account of the “punitive city,” we find a theoretical model in whichpunishment becomes the ordering force of the social, and therein a diagram of punitive power exerted in extensive form across the social field.

Owing Punishment

The account of punishment in De iure belli ac pacis develops most fully the relationship Grotius understands between strict rights and those claims arising from dignity or merit, which he associates with ‘expletive’ and ‘attributive’ standards of justice, respectively. The purpose of this article is to provide a philosophical reconstruction of two particular puzzles that arise out of the role Grotius assigns to the concepts of right and merit in the theory of punishment. How, in the first place, can a right to punish be legitimated if not on the grounds that the offender merits punishment for the crime? And then, if merit does not provide the grounds for punishment, why must the penalty be strictly limited to what the offender merits? A reconstruction of Grotius’s arguments grounding the right to punish and justifying the role of penal merit brings out the underlying coherence in Grotius’s theory of punishment, while also revealing that the norms of expletive and attributive justice are inextricably linked in Grotius’s system of natural right.

A Framework for Punishment: What is the Insight of Hartts Prolegomenon?

Nearly all of H. L. A. Hart’s philosophy of criminal law is helpfully contained in his 1968 collection Punishment and Responsibility. Clearly the most influential essay in this volume is the first, ‘Prolegomenon to the Principles of Punishment’, originally delivered as the presidential address to the Aristotelian Society in 1959. And the most important insight of this chapter is that oversimplification and distortion are best avoided if we realize that ‘different principles (each of which may in a sense be called a ‘justification’) are relevant at different points in any morally acceptable account of punishment. What we should look for are answers to a number of different questions’.1 In particular, Hart raised three (or perhaps four) separate questions about punishment and invoked distinct considerations about each: matters of definition, inquiries into the general justifyingaim, and disputes about distribution — the last of which he further subdivided into the issues of who should be punished and to what extent. Hart’s substantive views about these problems are celebrated. Even more influential, however, is the structure Hart brought to bear on the topic of how philosophical thought about punishment should proceed. The very first sentence in his ‘Prolegomenon’ indicates that the ‘main object of this paper is to provide a framework for the discussion of the mounting perplexities which now surround the institution of criminal punishment’.2

The Ethics of Punishment and the Ethics of Restoration: A Critical Analysis

Taking its cue from Augustine’s hesitancy to punish, this article develops an account of punishment as an exercise in Christian subjectivity, understanding by the latter term ‘self-knowledge’ and ‘being subject to another’s control.’ Framed in terms of the sacrament of reconciliation and mediated through the Late Medieval Ecclesiastical Courts, the explicit contours of this Christian subjectivity gradually eroded as secular practices and theories (retribution, rehabilitation, deterrence, and restorative) developed during the nineteenth and twentieth centuries. In the process, the rehabilitative ethos that this subjectivity upheld was lost also. Retrieving it is essential for understanding contemporary punishment from a Christian perspective.

Should we punish a remorseful offender? Punishment within a theory of symbolic restoration

This paper tackles the question whet her we should punish a remorseful offender. Traditional retributive and consequentialist theories on punishment are struggling with the question of the justification of punishment, but I think a more basic question needs to be solved first; namely, how can we interpret the practice of punishment. I state that a theory of symbolic restoration can help us to understand the meaning of this practice. A theory of symbolic restoration depends on an expressivist account of punishment, like Joel Feinberg's. Expressivism gives us an insight into the importance of the feeling of moral condemnation and it is this feeling that gives rise to the longing for punishment and remorse. Because of moral condemnation after a crime we ask for punishment and expect some kind of remorse. The question is whether punishment can be exchanged for remorse and I argue that in certain cases it cannot. The punishment of a remorseful offender is, I argue, – in certain cases – justified.

Communication, Punishment, and Virtue

AbstractThis essay suggests that while Antony Duff's model of criminal punishment as secular penance is pregnant with possibilities for theological reception and reflection, it proceeds by way of a number of separations that are brought into question by the penitential traditions of Christianity. The first three of these—between justice and mercy, censure and invitation, and state and victim, constrain the true communicative character of his account of punishment. The second set of oppositions, between sacrament and virtue, interior character and external action, and formal and moral reconciliation, subject the model of state punishment as secular penance to problematic liberal and libertarian constraints. A postsecular analogy, outlining a theology of the invitational nature of divine judgment, and drawing on Thomas Aquinas's account of penance as both sacrament and virtue, is proposed.

A Response to Harel, Hope, and Schwartz

It is a privilege to have this opportunity of responding to the thoughtful objections made by Alon Harel, Simon Hope, and Daniel Schwartz to theses I advance in my Collected Essays, Volume III, Human Rights and Common Good. I take up first the more or less political–institutional issues, and then the underlying issues concerning the pre-political content of a community’s common good, and the basic elements in the flourishing and rights of its members as human persons facing the choices needed for worthwhile, just, and sustainable communities. All these issues, institutional or not, are thoroughly normative. And so they involve a lot of non-normative facts and predictions—not because you can get an Ought from a sheer Is (or from a Was or a Will be), but because all practical reasoning has not only at least one normative premise but also at least one factual premise about circumstances and predictable causalities. So, Section I considers Harel’s thesis that judicial review can be defended because my ‘‘inauthenticity’’ critique of it applies a fortiori to the legislative articulation of human rights. Section II considers Harel’s thesis that my account of punishment is a ‘‘consequentialism’’ of ‘‘harmony’’. Section III considers Schwartz’s thesis that the principle of subsidiarity is an insufficient restraint on governmental action. Section IV considers Harel’s and incidentally Hope’s theses on sex ethics (particularly their thesis that same-sex relations and marriage are morally acceptable), an ethics of basic and great importance for socio-political life and theory, though conspicuously neglected in late-liberal political theory (unlike early liberal, say Thomist theory). Section V, finally, considers Hope’s thesis that our understanding of basic human goods cannot be disentangled from the local morality or moralities in which we grew up—or at least, cannot be disentangled sufficiently to provide us with moral guidance.

The Relation between Sovereignty and Guilt inNietzsche'sGenealogy

AbstractThis paper interprets the relation between sovereignty and guilt inNietzsche'sGenealogy. I argue that, contrary to received opinion,Nietzsche was not opposed to the moral concept of guilt. I analyseNietzsche's account of the emergence of the guilty conscience out of a pre‐moral bad conscience. Drawing attention toNietzsche's references to many different forms of conscience and analogizing to his account of punishment, I propose that we distinguish between the enduring and the fluid elements of a ‘conscience’, defining the enduring element as the practice of forming self‐conceptions. I show that forNietzsche, the moralization of the bad conscience results from mixing it with the material concepts of guilt and duty, a process effected by prehistoric religious institutions by way of the concept of god. This moralization furnishes a new conception of oneself as a responsible agent and holds the promise of sovereignty by giving us a freedom unknown to other creatures, but at the price of our becoming subject to moral guilt. According toNietzsche, however, the very forces that made it possible have spoiled this promise and, under the pressures of the ascetic ideal, a harmful notion of responsibility understood in terms of sin now dominates our lives. Thus, to fully realize our sovereignty, we must liberate ourselves from this sinful conscience.

Kant on the Role of the Retributive Outlook in Moral and Political Life

AbstractKant is regarded as one of the staunchest advocates of retributive punishment in the modern tradition. This essay makes the case that a careful reexamination of Kant's account of punishment is necessary, especially in light of liberalism's characteristic inability to give the powerful moral appeal of retribution its due. Kant attempted to provide a clear analysis of what we mean when we say that morality demands that punishment be “proportional” to the crime. According to Kant, punishment's retributive aspect—as distinguished from its deterrent or restorative effects—is primarily concerned with redeeming (negative) moral worth. This paper attempts to unpack this claim by examining Kant's discussions of judicial punishment, the conscience, and divine punishment, respectively. It concludes that as a result of serious unresolved difficulties in his arguments for retribution, Kant manages only to deepen the question of the morality of retribution rather than to give it a decisive answer.

Prolegomenon to a Theory of Punishment'

The expression “Theory of Punishment” is rather obscure; typically conflating two different enterprises: first, a purely descriptive enterprise which seeks to define punishment, and, second, a normative enterprise which seeks to justify punishment. While some authors have asserted that these two enterprises are inescapably linked, others have tried to keep them distinct. I think that the latter approach is on the right track, but that its proponents have not remained faithful to the very separation that they recommend. Thus I discuss here the standard account of punishment found in the philosophical literature, together with what I suggest are its shortcomings. I then present my own account of punishment, which I think overcomes the shortcomings of the standard account. While solving some problems, my account could be seen as creating new problems of its own, but I endeavor to show that these allegedly new problems are, at best, not really problems at all, or, at worst, are not terribly worrisome.

McTaggart on the right to be punished

J. M. E. McTaggart's interpretation of Hegel's theory of punishment has a strange double life. On the one hand it is considered important by philosophers of punishment for setting forth an novel and suggestive account of what we are, or ought to be, doing when we punish wrongdoers. What such writers are interested in is the prospect that a “right to be punished” gives of resuscitating retributivism, giving a non-consequentialist account of punishment which is not grounded in vengeance-seeking or an ineffable intuition of justice. McTaggart's view seems to hold out the promise of such a novel retributivism.On the other hand, Hegel scholars themselves seem to regard McTaggart's account as dead in the water as an interpretation of Hegel's remarks in the Philosophy of Right (from which his view is clearly drawn). At first sight, after all, there seems to be little textual evidence to support his reading. And two more recent accounts of Hegel's remarks on punishment have nothing to say about one of the central theses for which McTaggart argues, the one which I defend as an interpretation of Hegel here. The question for those sceptical of his reading remains how someone like McTaggart could have fallen prey to such a mis-interpretation; but perhaps it can just be explained as yet another case of a thinker reading his own views into Hegel rather than reading what is there. Perhaps McTaggart was over-zealous in putting forward his own thoughts and overlooked his scholarly duties.

Toward Social Reform: Kant's Penal Theory Reinterpreted

Here I set the stage for developing a Kantian account of punishment attuned to social and economic injustice and to the need for prison reform. I argue that we cannot appreciate Kant's own discussion of punishment unless we read it in light of the theory of justice of which it is a part and the fundamental commitments of that theory to freedom, autonomy and equality. As important, we cannot properly evaluate Kant's advocacy of the law of retribution unless we recognize his theory of justice as an ideal theory. Once we understand both Kant's larger account of justice and its relationship to his less basic commitments, we discover grounds to accept that larger theory, but reject components like the law of retribution with their basis in empirical conclusions we may not share with Kant. We also open the way to develop an account of punishment responsive to social circumstances.

A Reply to Bickenbach

Jerome Bickenbach has provided a fair and sympathetic account of my argument in Trials and Punishments, and has clarified some of the book’s obscurities - for which I am very grateful: I will focus my response on his main objection to my account of punishment, since I am not persuaded that the objection holds.Bickenbach argues that my ideal account of what punishment ought to be if it is to be adequately justified would actually show, if it succeeds, that criminal punishment (or at least punishment involving hard treatment) cannot be justified at all. ‘Criminal punishment, it would appear, is unjustifiable when it is needed, but justifiable only if it is no longer required’ (786). It would be justifiable if it was imposed on a criminal who shared the values embodied in the laws of the true community to which she belonged: but it would then be unnecessary, since in such cases ‘blame alone’ (or, one might add, a formal conviction or a purely symbolic punishment) would suffice for the communicative and persuasive purposes which punishment should ideally serve. It would be necessary if the criminal was a committed nonconformist who rejected the community’s values: but it would then be unjustifiable, since in such cases it could not serve the purposes which punishment should ideally serve.

The Reform Theory of Punishment

ACCORDING to the most familiar version tX of the utilitarian theory of punishment, the functions of the practice of punishment are deference and reform. It is usually assumed, moreover, that there is no particular need to examine the case for ascribing reform and deference functions to punishment separately, partly because deterence embraces reform. Obviously, if we change people in ways which preclude their ever being tempted to decide to commit crimes, to that extent we deter them (though deference might be thought to have narrower connotations, a point which is not particularly relevant to the moral analysis of this essay). More importantly, it is assumed that, if a person is prepared to accept the utilitarian account of punishment at all, he will quite naturally give the reform function an important moral place. Indeed, that punishment should be primarily reformative is thought to be the very essence of any approach which can lay claim to being humane, liberal, civilized. The purpose of this essay is to question the casual assumption that punishment ought to have a reform function and, in the process, raise certain issues which have been generally neglected. In order to suggest the nature of the difficulty I will state views on two seemingly different issues-views which are ordinarily regarded as liberal. Let us suppose they are views held by a composite individual whom we will call Mr. Enlightened. Mr. Enlightened is quite concerned about the state of communications and social organization in large-scale, industrialized societies. He sees the development of television, newspaper syndicates, bureaucracy, and the growth of the public relations function in all types of organization as constituting a clear and present danger to human freedom and human participation in the larger social decisions which affect individual lives. In many ways it is a unique threat. In all previous tyrannies the use of instruments of force and violence played a prominent role in the maintenance of the existing order. While this was wicked, it was at least visible. The oppressors were not easily concealed from the oppressed. But today the tyrants deliberately conceal themselves and their basic aims. This is what worries Mr. Enlightened. The oppressed cannot see their oppressors; indeed, the oppressed are in most cases not even aware that they are being victimized. Through control of the main agencies of social organization and communication the oppressors are able to make people conform to desired patterns of behavior, not by forcing them to do things which may or may not be against their will, but by making them choose to do the desired things. In a word, the new oppressors manipulate rather than coerce. Mr. Enlightened rails against this state of affairs. He argues that to treat human beings in this way is to violate their humanity, to treat them like dogs or tools rather than men. It is clear that the manipulation, and the wrong, consists not in prevailing upon individuals to choose certain courses of action but in doing so in ways which conceal the identity and the aims of those who influence-the hidden persuaders. Having dealt with this moral issue, Mr. Enlightened turns his attention to the institution of punishment. In this area his views are equally critical and clear. It is wicked to inflict suffering on individuals without attempting to eliminate the conditions which make the infliction of suffering necessary-conditions which are due to cir-