Can two wrongs make a right?

A new book interrogates the difficulty thinkers have had in justifying the punishment of criminals.

As a left-wing activist in the 1970s and 80s, I found that working-class people who voiced concerns about law and order were generally dismissed as right wing. Law and order did not fit in well with class politics. Many recognised that the imposition of punishment was not primarily intended to deter criminals and it fell unfairly on those sections of society ‘whose socially disadvantaged position makes them volatile, disaffected and thus threatening’ (1). As such, serious criticism of judicial punishment has been left to academic studies such as The Philosophy of Punishment by Anthony Ellis, a perfect introduction to a knotted subject.

In a 1998 essay, The Prison on the Continent, Patricia O’Brien charted the role of incarceration in punishment throughout Europe, from 1865 to 1965. She illustrated just how difficult it is to find a justification for punishing the criminal. And even in the twenty-first century, a satisfactory answer has not been found.

The question of whether punishment is justified is not simply an academic one. We can look at any democratic system and find that there is no uniform approach to punishment and that many different approaches run in tandem. As these approaches become part of overall policy, expressed in diverse sentences handed down by the courts, some individual sentences will be seen as harsh (for example, some of those pertaining to the 2011 riots) while others may be deemed to be too lenient. There remains, then, confusion over sentencing as well as a need to justify criminal punishment.

Ellis’s book is an ideal guide to the many forms that the justification for criminal punishment have taken. In asking the question, ‘why does society punish those who break its laws?’, Ellis takes us through the many theories put forward to justify punishment. In doing so, he finds that many approaches are not supported by empirical evidence.

Ashe points out, when it comes to justifying punishment there are two main approaches: internalist and externalist. The internalist theory tells us that punishment is justified because the criminal deserves to suffer. This is what Ellis refers to as the ‘Simple Desert Theory’ or retributivist approach. Essentially there are two aspects to this approach: the first states that the criminal deserves to suffer and the second says that suffering should be in proportion to the ‘moral gravity of the offence’. We can suppose that retributivist thinking is behind the recent raft of new criminal offences such as the mandatory life sentences for anyone committing a second serious violent or sexual crime, as well as new offences,such as aggravated possession of a knife. But Ellis rejects the ‘Simple Desert Theory’ on the grounds that it fails to explain why the offender deserves to suffer.

A further development of the internalist approach was given by Herbert Morris in his Essays in Legal Philosophy and Moral Psychology (1976). Morris maintained that punishment was a fitting response and that the right to be punished was derived from the general right to be treated as a person. Morris believed the offender owed something to others, as the rest of society has carried the burden of abiding by the laws of the land whereas the offender has not. So a just punishment ‘restores the equilibrium of benefits and burdens by taking from the individual what he owes’. Ellis points out the illogicality of this theory: taking what the offender owes to others will ‘go no way towards setting [the offence] right’.

In a sense, Morris’s ‘Just Distribution Theory’ views punishing an offender as a means to an end: it restores the balance of responsibility. Ellis does not pursue this, and yet it seems reasonable to suggest that any justification of punishment must therefore present an outcome. This would seem to be the idea behind punitive financial sentencing, for example fines for speeding, whereby the punishment results in society gaining something from someone who has not abided by the rules that the rest of us have abided by.

The internalist approach is one that many people find appealing. But others demand that punishment should do more than simply make the offender suffer. For instance, the measures announced in the government white paper, Legal Aid, Sentencing and Punishment of Offenders Act 2012, were criticised by legal professionals and charities for failing to do anything more than punish the offender. Michael Turner QC, chairman of the Criminal Bar Association, said at the time: ‘No one in that moment of pulling a knife thinks about the deterrent and a lot don’t even know about it.’ Kate Whaley, from the charity Mothers against Murder and Aggression, asked what is ‘to be done to change the offending behaviour of these people?’. She concluded: ‘That is what we should be looking at.’

Externalist theories, then, present punishment as a means to an end, whether that end involves reforming offenders and bringing about a change in the behaviour of the offender or presenting a deterrent to others. Externalist theorists suggest that the justification for punishment must benefit the offender, the victim, or society at large in some way. And it is these theories that Ellis focuses on in The Philosophy of Punishment.

Externalist theories of punishment have been around since classical times. In his Nichomachean Ethics, Aristotle saw a justification for the death penalty as a deterrent measure: ‘The generality of men are naturally apt to be swayed by fear rather than reverence, and to refrain from evil rather because of the punishment that it brings than because of its own foulness.’

Enlightenment thinkers recognised the need to separate the punishment of those who broke the law from the tyranny of monarchs. Punishment should not, they argued, be meted out on behalf of kings and emperors, but should be viewed in the light of what was best for society as a whole. ‘The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.’ So wrote Cesare Beccaria in On Crimes and Punishments (1769). In 1779 the British government passed the Penitentiary Act, which made the rehabilitation of criminals a function of all prisons.

Rehabilitation may suggest the humanist view that the offender, as a human being, has within himself the ability to recognise his behaviour as ‘wrong’ and therefore address it.  Punishment is thus seen as a means of bringing that awareness to the individual. But the recognition by the offender is not self-determined, it is coerced. In this sense, rehabilitation theories rely heavily on ‘educating’ offenders out of their behaviour.

It was this element of coercion that led the political philosopher Jean Hampton to argue that the threat of punishment by the state could not be morally justified. ‘As Hegel says, if we aimed to prevent wrongdoing only by deterring its commission, we would be treating human beings in the same way that we treat dogs.’ (2) As Ellis points out, Hampton recognised that the ultimate aim of punishment is the prevention of crime. Hampton placed a number of provisions on this aim. She felt that it was unacceptable to use the offender for the good of society, and that the reform of the offender must be for the good of the offender only. Hampton saw an educative aspect to the reformation of the offender. But it should be left to the offender himself to decide whether to accept those lessons or not.

The question of why we bother to denounce crime shifts the focus from the offender to society in general. Chapter 5 is headed by the famous quote from the British judge Lord Denning: ‘The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime.’ Denunciation theories attempt to explain why it is that society must, in denouncing offences, do so through the employment of an enormous judicial system and through inflicting suffering on offenders.

Some denunciation theories provide externalist explanations, such as the deployment of punishment to reduce crime or to act as a deterrent. Others, such as Joel Fienberg, argue that punishment is inherently expressive, suggesting that it reinforces the morality of society: it is condemnation for its own sake.

Law professor Anthony Duff argued that an acceptable institution of punishment must have four aims: repentance on the part of the offender; reconciliation between the offender and the victim; reform; and crime prevention. And it would appear that it is this multifaceted approach towards punishment which predominates in the majority of democratic nations.

Ellis himself does not attempt to offer up a ‘solution’. In the end he is content to support externalist, instrumental approaches, while recognising the value of deterrence.

Ellis is no pop philosopher, but The Philosophy of Punishment is an important and readable book. That Ellis does little more than indicate a preference for externalist approaches to punishment does not detract from the value of this work. The Philosophy of Punishment demands that the question of punishment be considered the most important in any discussion of law and order. The book deserves a wider audience than academics and students and will help go a long way to creating a wider debate – one that has been avoided for far too long.

Denis Joe is a reviewer for the Manchester Salon.

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Footnotes and references

(1) A Reader on Punishment, AR Duff, Oxford University Press 1994

(2) The Moral Education Theory of Punishment, Philosophy & Public Affairs, Vol. 13, No. 3 (Summer, 1984), pp. 208-238