Ted
Honderich’s Punishment: The Supposed Justifications Revisited adds to his
classic Punishment in addressing itself to an audience of more recent
political times, notably the UK under New Labour and post-September 11 USA. It includes a new concluding chapter.

Punishment
involves a deliberate infliction of suffering or deprivation. Suffering and
deprivation are in themselves bad things. So we need a justification for
punishing an offender. What is it? Those who say ‘Because she deserved it’ look
back to the past and appeal to desert. Those who say ‘Because it will reduce
crime’ look forward to the consequences and are typically utilitarians — those
who think that an action is right just in case it brings more benefit to
society in general than would be the case otherwise.  Honderich argues
persuasively that neither answer will do. He also rejects other sorts of
answers such as ‘It sends a message’ or ‘It reminds her of what the right
values are’ or the reformist’s ‘It will make her (or others) a better person’. He
is critical of answers that are mixtures of the preceding sorts of answers. He
observes that any justification of punishment must account for the grim fact
that a high proportion of people in prison are mentally ill. Yet consistently
with this, he effectively debunks the idea that all offenders are ipso facto
mentally ill and so should be treated, not punished.

Honderich
argues that our judgments about what justifies punishment in society are
inseparable from our judgment of what the decent society is. For him, punishing
an offender is justified just in case it is best judged a rational step towards
keeping people from living bad lives, where a bad life is roughly defined in
terms of benefits such as longevity, bodily well-being, freedom and power,
respect and self-respect, relationships with others and culture, including  knowledge
in place of ignorance. He accepts determinism — that every event has a cause
that makes that it inevitable that the event take place. Yet he argues that we may still sensibly take the attitude that actions are
voluntary, so people can have moral credit for their actions and offenders may
be morally blameworthy.

Honderich
starts by defining punishment as

an
authority’s infliction of a penalty, something intended to cause distress or
deprivation, on an offender or someone else found to have committed an offence,
an action of the kind prohibited by the law

where to be found to have offended
is to be found to have

actually
broken a rule out of intention or negligence, somehow freely and responsibly,
or broken certain rules without that, or have occupied such a position as
employer with respect to a rule breaker in either of the preceding senses.  

While quite a mouthful, this
realistic definition avoids any reference to desert and so keeps the playing
field level for various supposed justifications of punishment. 

            Honderich then
considers numerous backward-looking justifications of punishment — those that
appeal to what the offender has done, including, but not exhausting, those that
appeal to desert, in other words retributive justifications. He argues
convincingly that none of these will work. Either they are circular or they
reduce to a claim for which no reason has been given, one we may reject. If we
say that it is right to punish an offender because she deserves it, what answer
can we give to question ‘What makes her deserve it’?  Not ‘Because it is right’.

            Some of the
backward-looking justifications that Honderich rejects are as follows. Jurisprudents
often say that punishment is deserved because
it is linked to a worked-out system of penalties and offences. But a wicked system
of penalties and offences, such as Nazi Germany’s, would not make her deserve
punishment. 

A retributivist
might say that there are intrinsic goods, each corresponding to the offender’s sufferings
that are ‘proportional’ to the offence. But this does not capture what is
substantial about retributivism. In any case why should we accept it? We could
try saying that desert amounts to imposing a penalty of same kind as the
offence, but that would rule out justifications and excuses of the offence. 

We might say
that the offender deserves the penalty just in case the culpability of her behavior
is equivalent to the distress of the penalty. But culpability depends on the extent
of harm she has done and the degree to which she is responsible for it, so
culpability is incommensurate with distress. 

Jurisprudents
may say that an offender deserves the penalty, say five years in jail, when his
offence, say rape, falls into a broad category all members of which attract the
same penalty. But why does this category justify the penalty?  Not because
jurisprudents have decided that five years is
the right penalty for rape, on pain of circularity. 

We might claim
that the offender establishes the principle that it is right to injure others
and so should accept, if rational, that the principle be applied to herself.
But even if she has a right to be injured, this does not mean that we have a
duty to act on her right. A related idea is that the offender has consented to
punishment in the sense that had she thought about it sensibly, she would have
agreed to the social arrangements under which she is now being punished.  But
why should we accept this hypothetical claim?

Only
slightly more promising is the idea that to offend is to consent to be used as
a means to the prevention of offences. Honderich points out that the offender
does not consent to his punishment but only to her loss of immunity to it.

            What about the idea
that an offender (say someone who steals food) freely sheds himself of a burden
(that of self-denial) that results in an unequal distribution of burdens (of
self-denial)? Punishment corrects this unequal distribution and encourages
others to stick to it. But it is unlikely that the distribution was ever equal
in the first place. The rich have lighter burdens of self-denial than the poor.

            Honderich thinks that
there is only one idea in the backward-looking justifications of punishment
that has any substance. That is the idea that the offender deserves her
punishment because

The
penalty satisfies grievances owed to the offence, and does neither less nor
more than satisfy these grievances, and in doing so it is in accordance with a
system that connects penalties with offences by way of grievances.

His objection to this is that it
recommends a certain good, namely the satisfaction of people who have
grievances, be gained at too great a cost, namely the denial of great goods to
people. To this I might add my own objection: suppose that we execute a
murderer when nobody has any grievance and the next day execute another, when
there are plenty of grievances?  Must we admit that we are wrong today but not
tomorrow?

            Turning to utilitarian
justifications of punishment, Honderich shows how clear these are in comparison
to backward-looking justifications. He provides a nice analysis of the factual
claim that punishment prevents crime by deterring others that would otherwise
have committed offences. In so doing he points out an advantage had by the
utilitarian that is easily overlooked, that the utilitarian can explain the
fact that punishment reduces offences, not by
deterring would-be offenders who are caused to think twice, but by reinforcing
an unreflective obedience to law. The empirical question of how well
punishment deters would-be offenders is very difficult to answer. To that
difficulty I add my own: in measuring deterrence, what can we know about those
who have been deterred from committing an offence who spend their whole lives
crime-free? Nothing of course, yet wouldn’t we need to know this in order to assess
the effect of deterrence?

            Honderich has a decisive
objection to the utilitarian justification of punishment.  This is not that the
utilitarian must treat people as means rather than ends, for Honderich argues deftly
that this isn’t so. Instead it is that the utilitarian is committed to wrongful
victimizations. Against the ‘stout and graceful philosopher Lord Quinton’ who
would object that it is impossible to punish the innocent on a definition of
punishment like Honderich’s, he points out that this difficulty is merely
terminological (as Hart would say, a ‘definitional stop’), since talk of
victimization may replace that of punishment.   The utilitarian must say that a
person must be punished (or penalized, when she is innocent) if the total
resulting balance of satisfaction is greater than that which would result if
she were not punished, regardless of how these satisfactions are distributed
among a population. But we may imagine a possible case in which a penalty is
imposed on an innocent person that causes her great distress, where the
distress that would occur were she not penalized would be greater in total, yet
so widely and thinly spread that very many people suffer trivial amounts of
distress, such as not getting a cup of coffee in the morning. The penalty is
wrong, or as the desert-theorist might say, unfair because undeserved. Even if
such circumstances are unlikely to arise, the utilitarian is committed to doing
something wrong in them, in virtue of a rule that he uses in all circumstances,
including ordinary ones. That is enough to show that the utilitarian has the
wrong moral compass, even in most ordinary circumstances. But it would be a mistake
to think that this vindicates the desert theorist: a reason against
victimization need not be a reason for punishment. 

Honderich
seems right in making this the most serious objection to the utilitarian
justification of punishment. But perhaps the utilitarian might reply by
claiming that in the long run, avoiding such thinly spread inequalities of
distributed satisfaction itself produces more total satisfaction than not
avoiding them.

            Will we fare any
better with the idea that what justifies punishing an offender is moral
reformation? No. The victimization objection still bites since we may coherently imagine a wrongful victimization
would improve the moral character of many others. Moreover we cannot justify punishment in terms of an
improvement of the moral character of members of society unless we justify the
claim that it really would be an improvement. Punishing offenders with the
effect that many people change their moral character approved of by society
would not be right if that society is itself wicked, as was Nazi Germany. So we
still need an accurate conception of what the decent society would be. And
Honderich argues that the offender who is reformed by punishment is reformed in
the wrong way: the first step towards becoming a good person is not awareness
that others condemn what she has done, but a sympathetic awareness of how
breaking the law harms others.

Honderich
then effectively debunks the claim that all those who break the law do so as a
consequence of mental illness and so should be treated rather than punished.
Against the Freudian claim that offenders suffer from faculty relationships
between id, ego and superego, he points out that there no evidence for this
claim. Moreover the concepts it invokes have no precision. Eysenck’s claim that
children who are highly emotional and have a specific heredity are deterministically
conditioned by the environment to become offenders ignores the fact that at
least certain human decisions are different from a blink response. Against the
sociological view that offenders offend because they have been formed by a
certain social environment, it is difficult to see how this can be the complete
explanation of criminality. In any case it would take enormous resources to
treat all offenders — or would-be offenders — as if they were ill. Moreover,
if the alternative to punishment is treatment, we would be justified in
coercing offenders to undergo treatment, perhaps at great distress. We would
have to give up argument and rational discussion with an offender to persuade
her that what she did was wrong. We would also need the right view of what a
well offender would be — which again boils down to defending a view of the
decent society.

Non-utilitarians
must or do hold that an offender may be punished justly only if she committed
her offence voluntarily. How can they square this with causal determinism?
Honderich accepts determinism. He holds that quantum physics does not threaten determinism,
very roughly the claim that all events have causes that make their effects inevitable.
Yet he argues that we may keep the attitude that actions are voluntary.  He
maintains that we have two notions of freedom. One is freedom as origination:
your decision is free (so you are responsible for it) just in case it originates
in you as an uncaused cause, namely as an act of will. The other is freedom as
voluntariness: your decision is free just in case it accords with your desires.
Incompatibilism holds that freedom is voluntariness plus origination, so since
determinism rules out origination, determinism rules out human freedom. Compatibilism
holds that freedom is voluntariness, so determinism
is consistent with freedom, because your decision, say to steal, may be
inevitable given a preceding cause, such as a brain-event, yet still be in
accord with your desires. Honderich holds that both incompatibilism and compatibilism
are mistaken. Both assume that we have one fixed notion of freedom. In fact we
have two. When we accept determinism and think of freedom as origination, our
attitude is dismay, because our judgment that you were wrong to steal is
threatened by the fact that you could not have done other than steal, so you
were not responsible for stealing and thus not wrong. When we accept
determinism and think of freedom as voluntariness, our attitude is
intransigence: we stubbornly refuse to compromise on our judgment that you were
wrong to steal. Therefore we can keep the attitude that actions are voluntary. 

I found
this segment of the book the most technical. Perhaps I missed something, but I
find this position obscure. Surely the important question is not how we
conceive of freedom, but which conception is correct. Since freedom as
origination is ruled out by determinism, the
alternative seems to be the claim that you freely chose to steal only if you could
have done otherwise had you wanted to — despite the fact that what you in fact
wanted was causally determined. If this isn’t compatibilism, what is? 

            Honderich then
considers mixed theories, which roughly reduce to the claim that punishment is
justified because it is or may be deserved by the offender and also prevents
future offences. He shows, against Hart, that the fact that we can ask what
justifies the practice of justification separately from asking what justifies
particular punishments of particular offenders, does not mean that we must
answer the first just in terms of prevention of crime and the second just in
terms of desert. That won’t work, given his objections above. Against Nozick’s proposal that punishing the offender is justified
if it reconnects him with the correct values, he points out that the

‘aim is
to defend our societies as they are, or to defend societies to which we might
extrapolate from our societies. But we do not know, in any enlightening way,
what is supposed to make these societies worth defending’. 

So the communication theory is
incomplete.

            Honderich ends his
book with an impassioned argument for his own justification of punishment. For
me, this was when the book came alive, especially in comparison with the rather
dry discussion of determinism. His position is not politically liberal, or
communitarian, or conservative (to which he objects on the grounds that it
assumes, with no moral justification, that we should all be self-interested).
Rather, it is based on the Principle of Humanity: we must take what are best
judged rational steps towards keeping people from living bad lives, where a bad
life is roughly defined in terms of benefits such as longevity, bodily
well-being, freedom and power, respect and self-respect, relationships with
others and culture, including  knowledge in place of ignorance. 

Punishment
is justified just in case in accords with this principle. Honderich shows — or
rather, forcefully reminds us — that our own societies are indecent. The
best-off hundredth of the population of the UK has about 25% of total wealth.
In American the best-off tenth has had over 70%. The political power of the top
tenths is thousands of times greater than that in the bottom tenths, partly
because the richer have advantages they can buy, including lawyers. This
translates into children who will remain sick or ignorant, gross unemployment, race
discrimination in jobs and bad deaths for the old. It also explains
socio-economic disparities in terms of crime; those with greater freedom and
power have less risky ways of satisfying their desires than resorting to rape
or assaulting someone who persistently harasses them. Our societies, which are
indecent, are largely formed by our punitive systems. So our punitive systems
are wrong. They are not rational means of keeping people out of bad lives.
Instead they strengthen a society that mainly only improves already good lives,
by preserving an unfair distribution of benefits. For example, punishment for
offences against private property serves the end of those with power that seek
to profit themselves.

Also
important is what our punitive systems do not punish, such as those that
profitize what was public property, corporations like Bhopal that offend
against public health, or a  prime minister who lies to his nation about the
necessity of war. Honderich concludes that our penal systems serve a society
whose good lives rest on many more bad ones.

He ends
by claiming that we must reform the nature of our societies in any rational way
we can. We need more disrespect for the law and disdain for merely hierarchic
democracy. We can turn to mass civil disobedience, organize boycotts, withdraw
investments and refuse to pay taxes.

Whether
you agree with Honderich’s conclusions, there is no doubt that this book would
be invaluable for anyone who wants to start thinking seriously about what
justifies punishment, not only because it surveys a high proportion of the
classical literature but because it connects theories in broad yet subtle ways.
It adroitly anticipates the reader’s objections. It combines impressive breath
with meticulous dissection of ideas. Its conclusion is refreshingly iconoclastic.
It contains wit and a healthy contempt for politicians.

The
definition of punishment from which Honderich starts is admirably circumspect
and qualified. I just wished that the argumentation wasn’t so often of the same
character.  Meaner and leaner would have helped me more in identifying
inferences to sub-conclusions. Yet patience paid dividends: I got a lot more
out of it on a second reading.

Honderich
says in the last chapter that there is another book that should be written
about how actual systems of punishments in various countries fall short of the
Principle of Humanity. I hope he writes it. 

 

© 2006 John
Williams

 

John Williams,
Professor in Philosophy, Singapore Management University.

Categories: Philosophical, Ethics