Utilitarian and Kantian Theory of Punishment

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PROJECT ASSIGNMENT: JURISPRUDENCE I

UTILITARIAN AND KANTIAN

CONCEPT OF PUNISHMENT


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SUBMITTED BY: AMIT AGRAWAL

ID. NO.: BLIL 1147

DATE OF SUBMISSION: 18th November 2003.

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE.

Table of Contents

S. No. ContentPage

No.1. Introduction 3.

2. Research Methodology 4.

3. Chapter 1: Utility of Punishment 6.

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4.Chapter 2: Retributive Justice And

Legitimacy10.

5.Chapter 3: Can Capital Punishment Be

Justified13

6. Chapter 4: Finding A Middle Way 15.

7. Conclusion 17.

8. Bibliography 18.

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Introduction

Punishment entails the intentional infliction of pain or some type of deprivation in an

institutionalized form that individuals would generally prefer to avoid. This requires

justification to be morally acceptable. Attempts to provide justification for infliction of

punishment are made by various punishment theories.

Punishment theories generally can be separated into a handful of philosophical camps

consequentialist theories, non-consequentialist theories, and mixed (or hybrid) theories

that contain both consequentialist and non-consequentialist elements. What distinguishesthese theories is their focus and goals: Consequentialist theories are forward-looking,

concerned with the future consequences of punishment; non-consequentialist theories are

backward-looking, interested solely in past acts and mental states; and mixed theories are

both forward- and backward-looking, with each hybrid placing a different emphasis on

culpable past conduct versus future consequences.

The present paper will briefly examine the two dominant consequentialist and non-

consequentialist theories of criminal punishment--utilitarianism and retributivism,

respectively--as well as leading hybrid theories. In between using the utilitarian and

Kantian arguments fallacy of death penalty has also been explored.

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Research Methodology

Aims and objectives:

Present paper attempts to sketch the significance of two seemingly opposing justifications

of punishment.

Scope and Limitations:

Scope of the present paper is to conceptualise and to analyse the utilitarian and the

retributive penologies. In the present paper while discussing the utilitarian approach,

Bemthams conception of the punishment is focussed upon.

Research Questions:

I have attempted to answer the following questions in the present paper:

When ought (should) a person be punished?

When can a person be punished?

How can death penalty be justified?

Can both the theories be reconciled?

Chapterisation:

First chapter, as is evident by the title, aim to bring into light the utilitarian approach of

the punishment.Second chapter has dealt with the retributive account of justification of punishment

Third chapter focuses upon the issue of moral justification of death penalty.

Fourth chapter has dealt with hybrid theories that essentially try to reconcile both the

approaches.

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Style of Writing:

This paper has largely descriptive style of writing. Wherever necessary the researcher has

analysed and criticized the various aspects also.

Mode of Citation:

A uniform mode of citation is followed throughout the project.

Articles in the present paper have been cited in the following manner:

Name of the Author, Name of the article, Vol. No. (Issue No.-if applicable) Nameof

the JournalPage no. (starting) (Year of Publication), Page No. (May Not be applicable

for certain articles taken from websites).

Books in the present paper have been cited in this manner:

Name of the author (or Editor), Title of the Book, (Publishing Co.: Place of Publication,

Edition (if applicable), Year), Vol. No.(if applicable), Page No..

Sources of Data:

Mainly secondary sources of data such as articles, books and electronic resources have

been used to answer the various research questions.

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Utility of Punishment

Utilitarianism is mostly associated with the name of Jeremy Bentham. Although he was

not the first thinker to employ utility or the greatest happiness principle as the standard

for right and wrong, he is nonetheless, widely regarded as the founder of modern

utilitarianism. Bentham presented his ethical theory of utilitarianism in his book, An

Introduction to the Principles of Morals and Legislation1, published in 1789. This book

was essentially written as a prelude to a penal code that he intended to draw up. Thus, it

must be kept in mind that Bentham's philosophy was accompanied by his active role as a

reformer.

His An Introduction to the Principles of Morals and Legislation begins with the words:

Nature has placed mankind under the governance of two sovereign masters, pain and

pleasure. It is for them alone to point out what we ought to do, as well as to determine

what we shall do. On the one hand the standard of right and wrong, on the other the chain

of cause and effects, are fastened to their throne. They govern us in all we do, in all we

say, in all we think: every effort we can make to throw off our subjection will serve but to

demonstrate and confirm it.... The principle of utility recognizes this subjection, and

assumes it for the foundation of that system, the object of which is to rear the fabric of

felicity by the hands of reason and of law...2

He then goes on, By the principle of utility is meant that principle which approves or

disapproves of every action whatsoever, according to the tendency which it appears to

have to augment or diminish the happiness of the party whose interest is in question....3

Elaborating further, he identifies happiness with pleasure and unhappiness with pain.

This theory is viewed as a consequentialist theory where the actions are justified or

condemned by their tendency to have consequences that are pleasurable or painful. Its

ultimate foundation, thus, is the thesis that no actions are intrinsically right or wrong-it is

1 Jeremy Bentham, An Introduction to the Principles of Morals andLegislations, (H.L.A. Hart, et.al., eds., Clarendon Press: Oxford, 1996).2Id., p.11.3Ibid., pp.11-12.

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only their consequence with regard to the pain and the pleasure, which gives them the

moral status of being wrong or right.4

This view requires a moral obligation on the part every individual to promote the pleasure

of all who are affected by his or her acts equally. But the question arises: How can a

social order whose individual members are all egoists get those individuals to act

altruistically? Bentham's solution to this practical social problem is his theory of

sanctions whereby he proposes since individuals will perform antisocial acts whenever

their doing so will promote their own pleasure, such activity must be discouraged by

making its consequences painful to the agent.5

Bentham believed that every crime produced two evils i.e. the primary evil, which

consists of the actual commission of offence and the secondary evil, which consists of the

consequences that the criminal act has on society. For example in a case of murder, the

loss of life of the particular individual is primary evil and the general degradation of

respect for life and the fear that the murder had caused of insecurity among the people is

secondary evil. He says that it is the secondary evil that has more disastrous

consequences than the primary evil.6

Bentham treats the offence committed as an act of past. Therefore he advocates of using

this opportunity of punishing the offender in such a manner that the future offences could

be prevented.7 In his view if an offence has been committed as an isolated fact and there

is no possibility that any thing likely would ever recur, punishment in such situations

would be useless.8

Bentham looked at punishment as an evil as it increased the pain in the community and

therefore believed that it has to be carefully calculated so that the end result does not

4 I Primotraz, The Utility of punishment: Benatham, in, G J Posternal (ed.),Bentahm : Moral political And Legal Philisophy, (Ashgate publishing Co.:

Burlington, 2002), Vol. II, p. 331.5 See, http://philosophy.fullcoll.edu/res/profiles/bentham.pdf, visited on 11th

Nov. 2003.6 W Morrison, Jurisprudence: From The Greeks To Post Modern, (CavendishPublishing Ltd.: London, 1997), p.192.7 I Primotraz, The Utility of punishment: Benatham, in, G J Posternal (ed.),Bentahm : Moral political And Legal Philisophy, (Ashgate publishing Co.:Burlington, 2002), Vol. II, p.333.8Id.

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increase the pain of the community. He writes, upon the principle of utility, if it ought at

all to be admitted in as far as it promises to exclude some greater evil9

As noted earlier, prevention of offenses, in Benthams view, is the immediate and most

important end of punishment. Bentham believes in deterring the potential offenders from

violating the law by showing them the frightening example of the evil of the

punishment.10 Other ends of utilitarian punishment are special deterrence, incapacitation

and rehabilitation.11 In addition to the prevention of future offences, which is its chief

objective, punishment, in view of Bentham can also give satisfaction which can be of two

kinds: material compensation and vindictive satisfaction. To do away with the bad

consequences of the offenses, which have affected the victim, punishment can be made to

serve as material compensation in certain circumstances. With regard to vindictive

satisfaction, any pain or any evil inflicted on the offender can be a source of such

satisfaction, first for the victim, and then for all those who have felt anger due to the

commission of the offense and want the offender to be punished. Therefore while

determining the punishment what must be kept in the mind are not only the aims of

prevention but also of satisfaction. However this refers only to such modifications of

9 Jeremy Bentham, An Introduction to the Principles of Morals and

Legislations, (H.L.A. Hart, et.al., eds., Clarendon Press: Oxford, 1996), p. 158.10 This view of Bentham assumes a rational pre-calculation on the part ofcriminal of the consequences of his acts. It doesnt take into account theirrational factors in criminal behaviour such as passion ...etc. Bentham inresponse says, like the most of these very general and oracular propositions,it is not true. When maters of such importance as pain and pleasure are atstake, and these in the highest degree (the only matters, in short, that can beof importance) who is there that does not calculate? Men calculate, somewith less exactness, indeed, some with more: but all men calculate. I wouldnot say, that even a madman does not calculate. Passion calculates, more orless, in every man Quoted from, I Primotraz, The Utility of punishment:Benatham, in, G J Posternal (ed.), Bentahm : Moral political And Legal

Philisophy, (Ashgate publishing Co.: Burlington, 2002), Vol. II, p.335.11 Special deterrence refers to the deterrence of the wrongdoer himself.Incapacitation has to do with using the punishment to limit the opportunity ofthe offender to commit future offences. Imprisonment is the most commonform of the incapacitation. The aim of rehabilitation is to change the moralcharacter of a wrongdoer so that it is not necessary to threaten the offenderwith punishment in order for him to obey the law. See, A Altman, Arguing

About Law-An Introduction To Legal Philosophy, (Wadsworth Pub. Co.:Stamford, 2nd Ed., 2001), p.137.

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punishment, which do not aggravate the punishment over and above what is required of

prevention aims.12

All these utilitarian aims for punishment have one crucial feature in common. They

involve inflicting pain now on the wrongdoer so as to prevent greater pain from being

inflicted on the society in the future.13

Since Bentham always stressed on confining punishment to essential areas, in An

Introduction to the Principles of Morals and Legislation he discusses four areas where it

would not be useful to inflict punishment. First, when it is groundless- where there is no

mischief to prevent. Also the punishment is groundless when a harmful action was

necessary for preventing a greater evil. Second, when it inefficacious- in that the

punishment could not have stopped the commission of a crime- retrospective laws and

punishments to minors, drunkards, insane offenders fall into this category. Thirdly, when

the punishment would be unprofitable- in that the mischief that would flow from the

punishment would be greater then the one it sought to prevent. This would be a case

where punishing the offender would cause great pain to the public at large. Finally, where

the punishment is needless, in that the crime could be prevented or would cease even

without the punishment by other, non-punitive means such as various measures of social

policy and education.14

For Bentham no punishment can be granted if there are no utilitarian grounds to do so. At

the same time he advocates for the punishment of any one if it is in conformity with

utilitarian philosophy. For him it does not matter whether the person on whom

punishment is sought is actually guilty or nor. By this he even proposes to punish an

innocent as long as there are prudent reasons to do so.15

12 I Primotraz, The Utility of punishment: Benatham, in, G J Posternal (ed.),Bentahm : Moral political And Legal Philisophy, (Ashgate publishing Co.:

Burlington, 2002), Vol. II, p.335-336.13 A Altman, Arguing About Law-An Introduction To Legal Philosophy,(Wadsworth Pub. Co.: Stamford, 2nd edition, 2001), p.137.14 See generally- Jeremy Bentham,An Introduction to the Principles of Moralsand Legislations, (H.L.A. Hart, et.al., eds., Clarendon Press: Oxford, 1996), p.158-164.15 This is evident from the following:But so it be on account of some act that has been done, it matters not bywhom the act was done. The most common sense case is for the act to have

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This is the most controversial issue with which the researcher is also in disagreement

with as various other academicians are. In the opinion of the researcher punishing an

innocent might have utility as a short-term goal. But the researcher is unable to

understand as to how the utilitarian philosophy that purports to provide a standard or

measure for inflicting the punishment to the state can ignore the very fact that once it

becomes public knowledge that state can frame even an innocent to avoid another evil

(which would cause greater pain), the very institution in which Bentahm was trying to

bring reforms would loose its legitimacy. People will wonder whether the same fate

wont at any time fall on them. If one tries to imagine how such an institution would

actually work, it seems clear that it would serve no useful purpose.16

Take an example from recent Gujarat genocide episode. It is a universal fact that what

had happened in Godhara was the immediate cause of the widespread riots. This was also

within contemplation of state that the incident might spark a large-scale violence.

Therefore had they arrested thirteen or fourteen innocent people on the eve of the

Godhara incident and had started proceedings against them, alleging them to be the real

culprtits, probably thousands of other innocent lives would have been saved. But it is the

humble submission of the researcher that once it becomes public knowledge that the state

can go even to the extent of framing innocent because of no fault of theirs, the belief of

large populace of the state being their protector would have vanished. This in

consequence would have given birth to the feeling of insecurity, which will in no way can

be said to have increased aggregate welfare or pleasure for the people.

been done by the same person by whom the evil issuffered. But the evil maylight upon a different person, and still bear the name of punishment. In sucha case it may be styled punishment in alienam personam, in contradistinctionto the more common case in which it may be styled punishment in propriam

personam. Quoted in, I Promoratz, p 338.16 Similar views were expressed by Robert Goodin where he expresses Once

it becomes public knowledge that, as a matter of policy, we are willing tohang innocent people to assuage a baying mob . . . then everyone startsworrying: Who will be next? The anxieties associated with such thoughtssystematically occurring across the whole population will more than suffice tocancel the utility advantages of . . .throwing one prisoner to the mob on anygiven occasion Quoted from, G Binder, Punishment Theory: Moral orPolitical? 5 Buffalo Criminal Law Review 321, available at,http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf, visited on 10th

Nov. 2003.

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As far as the measurement of the punishment is concerned Bentham suggests that a

punishment must not be less severe than what is required to outweigh the benefit secured

by the offence. It is also suggested that punishment should not be more severe than what

is required to attain its purposes.17

17 I Primotraz, The Utility of punishment: Benatham, in, G J Posternal (ed.),Bentahm : Moral political And Legal Philisophy, (Ashgate publishing Co.:Burlington, 2002), Vol. II, pp. 341-342.

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Retributive Justice And Legitimacy

The retributive view of punishment is normally taken to be non-consequentialist;

whereby, the appropriateness of punishment depends on the nature of the act that has

been committed, not on the consequences of punishment.

Contemporary retributivism traces its lineage to Kant, who discussed punishment

briefly in the course of laying out his theory of justice in the first half ofThe Metaphysics

of Morals.18 For Kant, just actions are a subset of moral actions, so that legitimate

punishment must satisfy the dictates of both morality and justice.19 In opposition to

utilitarian approach that justifies punishment in terms of its beneficial consequences,

retributivism claims that punishment can be given solely on the basis of criminal guilt.

Kant believed that guilt is a sufficient condition for justifying punishment. His famous

passage is worth quoting:

Even if a civil society were to dissolve itself by common agreement of all its

members (for example, if the people inhabiting an island decided to separate and disperse

themselves around the world), the last murderer remaining in the prison must be

executed, so that every one will duly receive what his actions are worth and so that the

bloodguilt thereof will not be fixed on the people because they failed to insist on carrying

out the punishment; for if they fail to do so, they may be regarded as accomplices in this

public violation of justice.20

This theory clearly holds that criminal guilt deserves punishment and non-

criminal people have a moral duty to inflict the same. This theory is based upon the

18 See, G Binder, Punishment Theory: Moral or Political? 5 Buffalo CriminalLaw Review 321, available at,http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf, visited on 10th

Nov. 2003.19 See, Id.20 Quoted from, J G Murphy, Retribution, Justice and Therapy Essays in

philosophy of Law, (D Reidel Pub. Co.: Holland, 1979), p.82.

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concept of reciprocity. This implies that in order to enjoy the benefits of a legal system,

each man must make certain sacrifices, which is to obey the law irrespective of personal

liking. This claim is demanded by a general theory of political obligation. In Kants view

if the law is to remain just, it is essential that those who disobey it dont get any unfair

advantage over the people who obey it voluntarily. In his view the criminal himself

would have no complaint when punishment is inflicted upon to him because he had

rationally consented to his punishment. Kant here seems to have used the Rawlsian

concept of original position to derive the consent of criminal. He says that the rules

which criminal had broken were obeyed by other people for his benefit. And since he

derives benefit out of the obedience of other people of those rules, he owes a debt to other

people in the form of his own obedience. And if the deviant doesnt exercise the self-

restraint and obedience, he has to pay the debt in the form of paying the penalty.21

This analysis treats punishment as a debt; therefore once it is paid it calls for re-

entry of the criminal into the community.

Kant was against the utilitarian philosophy of using punishment as a means to general

good.22 He acknowledged that morality requires us to treat each human being as an end in

himself. Kant proposed justice, rather than morality, as the standard of assessing the

punishment.23 To continue with the description of the retributive conception of fairness,

another question that arises for consideration is: if a person has done wrong and deserves

21Ibid., pp.83-84.22 In a widely quoted passage, he objected to what he imagined to be theimplications of utilitarianism for punishment: Judicial punishment can neverbe used merely as a means to promote some other good for the criminalhimself or for civil society, but instead it must in all cases be imposed on himonly on the ground that he has committed a crime; for a human being cannever be manipulated merely as a means to the purposes of someone else

and can never be included among objects of the law of things. His innatePersonality protects him against such treatment, even though he may indeedby condemned to forfeit his civil Personality. He must first be found deservingof punishment before any consideration is given to the utility of thispunishment for himself or for his fellow citizens. Quoted from, G Binder,Punishment Theory: Moral or Political? 5 Buffalo Criminal Law Review 321,available at, http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf,visited on 10th Nov. 2003.23Id.

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punishment, how much punishment should be meted out? As answer to this question

Kants theory is claimed to have propounded the principle of lex talionis, which implies

of return like for like.24 Kants favourite example of this is the penalty of death for the

crime of murder.25 This is the most criticized aspect of the retributivism. Firstly, because

in every case punishment on the basis of like for like cannot be given. 26 To illustrate:

what punishment should be given to a rapist. In that case another explanation that is given

is retributivism demands proportionality, not equation.27

Another problem that arises when dealing with this notion of proportionality is

that how to decide or assess the degree of wrongfulness. To illustrate: how can one

decide whether to have succeeded in beating someone up is worse than to have shot to

kill but to have missed? The reason is that there is no natural metric that allows to

translate the harm into the punishment. If the harm is theft or treason, how can this be

translated into a jail sentence under lex talionis?28 Due to this it is also said that there can

be no just punishment for any crime.29

Another criticism of this theory is that retribution makes good sense only in those

communities where it consists of responsible individuals of approximate equality. In the

24 Lex talionis was endorsed by Kant: [W]hat amount of punishment is it thatpublic justice makes its principle and measure? None other than the principleof equality . . . Accordingly, whatever undeserved evil you inflict uponanother . . that you inflict upon yourself. . . . [O]nly the Law of retribution(ius talionis) . . . can specify definitely the quality and the quantity ofpunishment . . . ., See,http://www.law.harvard.edu/programs/olin_center/papers/pdf/book/06lawEnforcement.pdf, visited on 11th Nov. 2003.25

J G Murphy, Retribution, Justice and Therapy Essays in philosophy of Law ,(D Reidel Pub. Co.: Holland, 1979), p.85.26Id.27 W Saudurski, Giving Desert Its Due-Social Justice And Legal Theory, (DReidel Publishing Co.: Holland, 1985), p.237.28 http://www.law.harvard.edu/programs/olin_center/papers/pdf/book/06lawEnforcement.pdf, visited on 11th Nov. 2003.29 W Saudurski, Giving Desert Its Due-Social Justice And Legal Theory, (DReidel Publishing Co.: Holland, 1985), p.238.

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present human societies many people neither benefit nor participate in the society due

inbuilt disadvantages.30

One of the other characteristics of retributivism is that punishment must be imposed

systemically and equally on all similarly situated actors. According to Kant justice is a

value that inheres in regularity and systematicity.31

In the opinion of the researcher the approach of retribution, which is essentially a

backward looking approach, of treating violence with violence is not a humanistic

approach. Another criticism in the opinion of the researcher which is shared by various

academicians is that this theory calls for infliction of the punishment on the basis of the

harm inflicted which in all circumstances can not be said to be a right approach. This

view doesnt take into consideration various factors behind commission of the crime.

Reasons for delinquent behaviour of a person maybe his disadvantaged position in the

society or parental influence or many other such factors.

Another criticism in the opinion of the researcher of this theory is that it might be in

contradistinction with utilitarian approach in some areas but it is not totally devoid of the

utilitarian philosophy as it pretends to be. It is submitted that the very notion of giving

criminals their due desert acts as means to maintain order in the society which is nothing

but promotion of pleasure of society as viewed by Bentham.

30 J G Murphy, Retribution, Justice and Therapy Essays in philosophy of Law ,(D Reidel Pub. Co.: Holland, 1979), p. 79.31 It is explained by Jeffrie Murphy as follows, [i]t is a necessary truth aboutthe institutional rules

prescribing punishment, and not merely a moral observation about them,that they should be justlyenforcedthat like cases be treated alike. For only in this way can law attainits primary social function: the control of social behavior through rules. . . .

These rules can perform their socials function only if coupled with a justlyenforced system of authoritative punishment. See, G Binder, Punishment

Theory: Moral or Political? 5 Buffalo Criminal Law Review 321, available at,http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf, visited on 10th

Nov. 2003.

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Can Capital Punishment Be Justified

After having given account of essential characteristics of major justifications of

punishment, the researcher in this chapter using the arguments advanced in the preceding

chapters would attempt to establish that death penalty in general can not be justified

morally by either of the approaches.

Taking the retributive perspective first which seems to suggest that if a person has

committed murder, he himself has called for death penalty as repayment of debt. This

view is also supported by the lex talionis principle where Kant himself had called

imposition death penalty for the crime of murder. But it is humbly submitted that the

meaning oflex talionis itself is very ambiguous. Up till today scholars arent very clear

Kant by using the above-mentioned particular phrase called for punishment in the form of

like for like or it merely suggested that punishment for an offence must be given with

reference to its gravity. Even if it is assumed for the argument sake that Kant called for

punishment in the form of like for like, just because death penalty is a fit penalty for the

crime of murder doesnt make its execution. As mentioned earlier one of the essential

characteristics of the retributivism is that similarly placed actors must be punished

equally. This clearly suggests that if a punishment cannot be inflicted equally on all

offenders it is not just. If lex talionis is interpreted as to propound proportionality

principle then it must be noted that the range of punishments is very limited however the

range of crimes seem to be infinite. Therefore if at all death penalty, which is the ultimate

penalty has to be given, it must be reserved for the ultimate crime, 32 which in the opinion

of the researcher murder does not qualify for. In the opinion of the researcher death

penalty can be justified only in the cases genocide.

32 The argument is borrowed from E V Haag, In defense of Death Penalty: APractical and Moral Analysis, in J Feinberg, et.al., (ed.), Philosophy of Law,(Wadsworth Pub. Co.: Stamford, 6th edition, 2000), p.838.

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As far as utilitarian arguments are concerned the researcher using three properties of

punishment would show that the death penalty is not desirable by utilitarians as well.

According to Bentham each punishment has a real value and an apparent value.

Real value consists of amount of pain, suffering which was in fact inflicted on the person

punished. Apparent value is that which the real value has impression of in the minds of

others. Now it is the apparent value, which satisfies the aims of punishment. It is actually

the real expense at the expense of which the apparent punishment gives profit.33 It is

argued that the people who are attached to life by the ties of reputation, affection etc fear

of death penalty more than of any other imprisonment. Benthams central argument of

this is that perpetual imprisonment with suitable aggravations can be made to be more

terrifying than the threat of death.34

Another property of utilitarian punishment is popularity, which essentially means that a

punishment must not be unpopular which would cause unnecessary suffering on the

offender. In Benthams opinion once it is understood that the death penalty is not the

deterrent or preventive, its popularity would soon vanish.35 Today there are many a

reports which suggest that there exists no rational nexus between the imposition of the

death penalty and a subsequent decrease in the rate of capital offences. Consequently, the

deterrent effect of the death penalty is doubtful36

Third property of punishment extends the strongest argument against the death penalty

that is that evil inflicted by punishment ought not to be completely irreparable.

Punishment ought to be remissible, so that in cases where it is found that the punishment

33 H A Beadu, Benthams Utilitarian Critique of The Death Penalty, in, G JPosternal (ed.), Bentahm : Moral political And Legal Philisophy, (Ashgate

publishing Co.: Burlington, 2002), Vol. II, p.376.34 Id.; See also, I Primotraz, The Utility of punishment: Benatham, in, G JPosternal (ed.), Bentahm : Moral political And Legal Philisophy, (Ashgatepublishing Co.: Burlington, 2002), Vol. II, p.342.35 H A Beadu, Benthams Utilitarian Critique of The Death Penalty, in, G JPosternal (ed.), Bentahm : Moral political And Legal Philisophy, (Ashgatepublishing Co.: Burlington, 2002), Vol. II, p.375.36 R Hood, The Death Penalty A Worldwide Perspective, (OUP: USA, 2nd edition,1996), pp.187-190.

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has been given by mistake, it can be remitted, or compensated for. In case of death

penalty there is absolutely no scope to compensate the wrongly executed person.

For all these reasons, the researcher feels that death penalty can be defended morally

neither by utilitarian nor by retributive theories.

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Finding A Middle Way

As is evident from last chapters that philosophy of punishment is marked by two

irreconcilable approaches. One looks at past to justify punishment and the other at

future to do the same. However there have been philosophers who believed that

both the theories of punishment apart from their inherent difficulties have an

important contribution to make- that each has grasped a part of truth about the

moral basis of the punishment. They have held that one should try for a synthesis,

which would avoid the outright mistakes of both and would incorporate important

aspects contained in both the theories.37

Rule-Utilitarianism

Rule- utilitarian theory of punishment attempts to bridge the gap between utilitarianism

and retributivism by providing a synthesis which is basically utilitarian, but makes room

for considerations of justice and desert as well. 38 The classic formulation of this theory is

presented by John Rawls whereby he makes distinction between the roles of legislator

and that of a judge.

One can say, then, that the judge and legislator stand in different positions and look in

different directions: one to the past, the other to the future. The justification of what the

judge does, qua judge, sounds like the retributive view; the justification of what the

(ideal) legislator does, qua legislator, sounds like the utilitarian view. Thus both views

have a point (this is as it should be since intelligent and sensitive persons have been on

both sides of argument); and ones initial confusion disappears once one sees that these

37 I Primoratz, The Middle Way in The Philosophy of Punishment, in RGavison (ed.), Issues in Contemporary Legal Philosophy-The Influence of H L

A Hart, (Clarendon Press: Oxford, 1989), p.194.38Ibid., p.201.

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views apply to persons holding different offices with different duties, and situated

differently with respect to the system of rules that make up the criminal law.39

With regard to the punishment of the innocent, the rule-utilitarians argue that

punishment of the innocent can never be really socially useful, because once it becomes

public knowledge that an innocent has been punished, this will undermine the rule broken

and the harm caused by it will be far more than the benefit initially accrued. Another

possibility of argument is that the punishment of the innocent assumes that the judge has

the authority particular cases on utilitarian grounds but this possibility has already been

done away with by the very notion of rules.40

Rawls contends that a utilitarian justification of punishment of the innocent,

which he calls as telishment is most unlikely. This is because in this case the danger of

system being abused would be great. Another reason that he gives is that in a society

where the institution is replaced by telishment, uncertainity of people being telished and

unpredictability of ones own fate would be a high price to pay. This all would be

because of the public knowledge of rules of institutions.41

Rawls is criticised on both the accounts. On the first count, because any system

can be abused by the officials which is not the peculiar case with the institution of

telishment. On the second reasoning he is criticised by saying that the rules of telishment

could be internal rules-known only to the officials of the institution. Hence there would

be no danger of public knowledge and therefore the system woul allow the

punishament/telishment of the innocent. The researcher quite doesnt agree with this

criticism of Rawls because of the simple fact of practicability of such situation.42

H L A Hart

39 Quoted from, S Freeman, (ed.), Collected Papers-John Rawls, (OUP: NewDelhi, 1999), p.21.40 I Primoratz, The Middle Way in The Philosophy of Punishment, in RGavison (ed.), Issues in Contemporary Legal Philosophy-The Influence of H L

A Hart, (Clarendon Press: Oxford, 1989), p.202.41Ibid., p.203.42Id.

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Harts views on punishment are quite similar to rule-utilitarian. He says that a morally

tolerable theory must exhibit a compromise between distinct and partly conflicting

principles. He suggests that the way to do it is to distinguish the question of general

justifying aim and that of distribution. By general justifying aim he means the

question of justification of the institution of punishment and by the question of

distribution he means: who gets punished and how much?43

In his opinion the question of general justifying aim cannot be answered by retribitivism.

General justifying aim of the institution of punishment has to be general deterrence, in his

view. It is only at the time of distribution that the retributivism has to be considered along

with utilitarianism. He says that the question of liability has to answered purely in

retributive terms i.e. only those can be punished who have violated the law. The amount

of punishment is to be decided upon by the consideration of both. He also advocates of

some proportion between crime and punishment. He disregards disproportionately harsh

punishments not because they are uneconomical but just because they are

disproportionate. He also includes considerations of mitigation in the punishment not

because of any utility but because justice requires considering those who faced

difficulties in obeying the law they have broken.44

These are the main points of Harts theory.

This in the researchers opinion is essentially a utilitarian theory where retributive theory

has been used as a caveat added to it.

Conclusion

Examining the two major theories that have been brought forward by moral philosophers

in the justification of punishment, we find that punishment from the perspective of the

utilitarianism is defended by taking the position that bygones are bygones and that

future consequences should be the sole guide for sanctioning decisions. With this

43Ibid., p.204.44Ibid., pp.204-206.

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objective in mind, utilitarianism provides an apparently sensible approach to the ends and

means of punishment. But even if it is assumed that utilitarianism could justify the

existence of a criminal justice system, the problem that comes is: how is it possible to

weigh the various costs and benefits of punishment. R A Duff opines, [W]hen we try

seriously to think what this would involve, we will realize that such a utilitarian calculus

is a fantasy.45 The strongest criticisms of utilitarian punishment, is implicit in the

Kantian form of punishment which declares to not to use individuals as means to other

ends but to treat them as ends in themselves. Kantian approach, which is essentially a

backward looking approach emphasize upon the rights of the individual more than

anything else.

If we scrutinise both the theories closely we find that both the theories require the legal

force to be democratically legitimate. Both require law to secure freedom for individual.

Yet both Bentham and Kant require these similar conditions for different reasons.

On applying arguments of both the justifications of punishments it is also found that

death penalty cannot be morally defended by any of these.

Towards the end, hybrid theories come up with a basically utilitarian approach

constrained by retributive principles.

45 See, E Luna, Punishment Theory, Holism, And The Procedural Conceptionof Restorative

Justice, 2003 Utah Law Review 205.

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Bibliography

Articles:

1. E Luna, Punishment Theory, Holism, And The Procedural

Conception of Restorative Justice, 2003 Utah Law Review

205.

2. G Binder, Punishment Theory: Moral or Political? 5 Buffalo

Criminal Law Review 321, available at,

http://wings.buffalo.edu/law/bclc/bclrarticles/5(2)/Binder.pdf,

visited on 10th Nov. 2003.

3. H A Beadu, Benthams Utilitarian Critique of The Death

Penalty, in, G J Posternal (ed.), Bentahm : Moral political

And Legal Philisophy, (Ashgate publishing Co.: Burlington,

2002), Vol. II, p.366.

4. I Primoratz, The Middle Way in The Philosophy ofPunishment, in R Gavison (ed.), Issues in Contemporary

Legal Philosophy-The Influence of H L A Hart, (Clarendon

Press: Oxford, 1989), p.193.

5. I Primotraz, The Utility of punishment: Benatham, in, G J

Posternal (ed.), Bentahm : Moral political And Legal

Philisophy, (Ashgate publishing Co.: Burlington, 2002), Vol.

II, p.329.

Books:

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1. A Altman, Arguing About Law-An Introduction To Legal

Philosophy, (Wadsworth Pub. Co.: Stamford, 2nd edition,

2001).2. J Feinberg, et.al., (ed.), Philosophy of Law, (Wadsworth Pub.

Co.: Stamford, 6th edition, 2000).

3. J G Murphy, Retribution, Justice and Therapy Essays in

philosophy of Law, (D Reidel Pub. Co.: Holland, 1979).

4. Jeremy Bentham,An Introduction to the Principles of Morals

and Legislations, (H.L.A. Hart, et.al., eds., Clarendon Press:

Oxford, 1996).

5. R Hood, The Death Penalty A Worldwide Perspective, (OUP:

USA, 2nd edition, 1996).

6. S Freeman, (ed.), Collected Papers-John Rawls, (OUP: New

Delhi, 1999).

7. W Morrison, Jurisprudence: From The Greeks To Post

Modern, (Cavendish Publishing Ltd.: London, 1997).

8. W Saudurski, Giving Desert Its Due-Social Justice And Legal

Theory, (D Reidel Publishing Co.: Holland, 1985).

Miscellaneous:

1. http://philosophy.fullcoll.edu/res/profiles/bentham.pdf,

visited on 11th Nov. 2003.

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2. http://www.law.harvard.edu/programs/olin_center/papers/pd

f/book/06lawEnforcement.pdf, visited on 11th Nov. 2003.

Utilitarian and Kantian Theory of Punishment

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