Title

The justifiability of punishment

Date of Award

2008

Degree Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Philosophy

Keywords

Punishment, Justification, Legal theory, Liberalism, Criminal law

Subject Categories

Arts and Humanities | Philosophy

Abstract

I argue that there is no general justification, meaning a justification that holds across a broad range of reasonably realistic social conditions, for the institution or practice of punishment. I divide my project into two main parts: an attack on the prospects for a general justification within the framework of contemporary liberal political theory and an attack on the prospects for a general moral justification.

In Part One I argue that punishment cannot be generally justified on contemporary liberal political theory, given minimal, uncontroversial understandings of both. I evaluate punishment's general liberal justificatory prospects to facilitate assessment of the possibility and feasibility of alternatives to punishment. I demonstrate that there is a conceptually and practically viable alternative and show how this possibility, in conjunction with liberal commitments, undermines the prospects for a general liberal justification. In Part Two I employ the distinctions, strategies and arguments developed in Part One against Consequentialist, Retributivist and Expressivist justifications of punishment. In the process, I develop a sketch of a non-punitive enforcement system. This alternative, I argue, has better justificatory prospects than punishment and its possibility undermines the general justifiability of punishment.

My argument focuses on a widely recognized but insufficiently appreciated characteristic of punishment: that it aims to impose suffering on offenders (in a broad sense of suffering that I will make clear). This characteristic is important for two reasons. First, it is conceptually significant. Recognition of it helps us avoid a common error in punishment theory: the adoption of an overly broad conception of punishment on which practically all forms of enforcement qualify as punishment. Second, the aim influences the character of enforcement and the justifiability of different forms of enforcement. Focusing on this aim, I argue that philosophers have significantly underestimated the range and misunderstood the possible character of alternatives. I show how a non-punitive enforcement system can achieve many of the ends to which advocates of punishment appeal while avoiding some of the justificatory problems posed by punishment. In light of this, I argue, the possibility of such an alternative undermines the general justifiability of punishment.

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