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Philosophy Punishment
by
Thom Brooks

Introduction

The punishment of criminals is a topic of long-standing philosophical interest since the ancient Greeks. This interest has focused on several considerations, including the justification of punishment, who should be permitted to punish, and how we might best set punishments for crimes. This entry focuses on the most important contributions in this field. The focus will be on specific theoretical approaches to punishment including both traditional theories of punishment (retributivism, deterrence, rehabilitation) and more contemporary alternatives (expressivism, restorative justice, hybrid theories, unified theories) with an additional section on capital punishment, perhaps the particular form of punishment that has received the most sustained philosophical attention. These theories of punishment address two important questions: first, who should be permitted to punish and, secondly, who should be permitted to be punished. These questions then concern the justification of punishment and its distribution. While the majority today often identifies their theories as retributivist, there is a great diversity of theories defended. This entry will highlight the leading work for each view.

General Overviews

There are several excellent general overviews on the philosophy of punishment. Perhaps the best general overview on punishment is Bedeau 2010, while the best on legal punishment would be Duff 2008. Murtagh 2005 also offers a useful general overview of punishment. Foucault 1977 offers a revealing account of the history and sociology of punishment. An outstanding comprehensive sociological examination of punishment can be found in Garland 1990. Those interested in general introductions to how the philosophy of punishment meets the practice of punishment should see Easton and Piper 2005.

Textbooks

There are many excellent textbooks on the philosophy of punishment. The most widely known classic is Honderich 1976, which has been revised in the form of Honderich 2006. Other impressive texts that cover substantial ground are Ten 1987 and Walker 1991. Primoratz 1998 offers an alternative to these accounts in its strong endorsement of retributivism and capital punishment. The most comprehensive treatment is Brooks 2012, which considers all theories of punishment noted in this bibliography. It endorses a unified theory of approach to punishment.

Anthologies

There are a few excellent anthologies collecting many of the best essays on the philosophy of punishment. The most widely used is perhaps Duff and Garland 1994 and von Hirsch and Ashworth 1998. Simmons, et al. 1995 brings together the best articles on punishment appearing in the journal Philosophy and Public Affairs. Duff 1993 offers the most comprehensive collection of classic readings on the subject.

Retributivism

Retributivism is the view that only deserving persons should be punished. Some retributivists argue further that deserving persons should be punished in proportion to their desert, although there is disagreement on how this should be best understood. Kant 1996 offers a traditional argument in favor of retributivism with further explanation of his argument found in Brooks 2003. The classic contemporary essay in defense of retributivism is Armstrong 1961. Cottingham 1979 offers an excellent analysis of the various versions of retributivist theories of punishment that have been defended. The most comprehensive defense of contemporary retributivism is Moore 1997. Nussbaum 1993 presents a well-argued understanding of important limitations on retributivism, including the enactment of retribution in practice and how retributivists might accommodate issues pertaining to equity and mercy. Davis 1983 offers an influential explanation of how retributivists might set punishments in proportion to crimes. Lippke 2007 argues that a retributivist theory of punishment has important implications for a theory of sentencing. Finally, Husak 1992 raises questions about the importance of desert in punishing.

Deterrence

Deterrence is the view that we should set punishments for crimes to the degree that they might have a deterrent effect. Proponents of general deterrence argue that this effect should focus on deterring potential offenders; proponents of special deterrence argue that this effect should focus on the individual criminal we plan to punish. The traditional defense of deterrence is presented in Beccaria 1986 and Bentham 1996. Perhaps the best and most influential contemporary defense of deterrence is found in Ellis 2003. Deterrence-proponents have often been subjected to the criticism that their theory would justify the punishment of an innocent person if this enabled a deterrent effect. This objection is challenged best in Rosen 1997. Kahan 1999 offers a critique of the importance of deterrence considerations in our deliberations about punishment in general.

  • Beccaria, Cesare. On Crimes and Punishments. Translated by D. Young. Indianapolis: Hackett, 1986.

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    Offers the traditional defense of deterrence. Will be of interest not only for its historical relevance but also for the force of its central arguments that remain influential today. Highly accessible to those coming to the study of punishment for the first time.

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  • Bentham, Jeremy. Introduction to the Principles of Morals and Legislation. Edited by J. H. Burns and H. L. A. Hart. Oxford: Oxford University Press, 1996.

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    A classic defense of deterrent punishments by the modern founder of utilitarianism.

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  • Ellis, A. “A Deterrence Theory of Punishment.” Philosophical Quarterly 53 (2003): 337–351.

    DOI: 10.1111/1467-9213.00316Save Citation »Export Citation »E-mail Citation »

    The best and most influential contemporary defense of deterrence. Will be of interest to both new and more advanced readers. Particularly useful discussion of how the theory of deterrence might avoid the charge of ever punishing innocent persons if doing so might yield a deterrent effect.

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  • Kahan, D. “The Secret Ambition of Deterrence.” Harvard Law Review 113 (1999): 413–500.

    DOI: 10.2307/1342330Save Citation »Export Citation »E-mail Citation »

    Offers important criticisms of deterrence theory. It questions how deep our commitments are to theories of punishment based upon their deterrent properties rather than our views about what persons might deserve.

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  • Rosen, F. “Utilitarianism and the Punishment of the Innocent: The Origins of a False Doctrine.” Utilitas 9 (1997): 23–37.

    DOI: 10.1017/S0953820800005112Save Citation »Export Citation »E-mail Citation »

    An excellent analysis of the objection to deterrence, which states that deterrence proponents are open to punishing the innocent under certain conditions.

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Rehabilitation

Rehabilitation theorists argue that the goal of punishment should be the rehabilitation of criminals. The overwhelming majority will be released into the public once more, and our aim should be to ensure they are rehabilitated so that they do not reoffend. Morris 1981 offers one important account, although the most influential classic essay is Hampton 1984. Crow 2001 presents an important account of where rehabilitative theory meets practice. Allen 1981 charts the declining interest in rehabilitative theories of punishment among policy makers. A controversial approach to thinking about rehabilitation concerns the use of shame punishments. Proponents of shame punishments claim they are helpful in instilling a sense of guilt leading to the rehabilitation of offenders. For arguments in favor of shame punishments see Brooks 2008 and Braithwaite 1989; for arguments against shame punishments see Nussbaum 2004 and Whitman 1998.

Expressivism

Expressivists are divided into two camps. The first camp argues that punishment serves the important purpose of expressing the community’s anger toward a criminal for his or her crime. The classic and most influential defense of expressivism is Feinberg 1970. Primoratz 1989 offers a defense based upon punishment as a form of language where the community “speaks” to offenders via punishment. The second camp defends a view of punishment as “censure” or “communication.” The best defense of punishment as expressing public censure is von Hirsch 1993. The communication view is that punishment not only expresses censure to criminals but criminals communicate back via a form of secular penance. Duff 1986 offers the first attempt at an account of the communicative theory of punishment. Duff 2001 offers a more complete defense of this theory. Bennett 2006 also offers a further important development of this communicative theory. Davis 1991 presents an early criticism of expressivism, and Kahan 1996 offers a more comprehensive critique of expressivist theories of punishment.

Restorative Justice

A highly influential defense of restorative justice is Braithwaite 2002. An excellent general overview of restorative justice with critics and defenders is von Hirsch, et al. 2003. Restorative justice proponents have been highly interested in addressing juvenile offending. Walgrave 1995 offers an excellent treatment of this subject. The most comprehensive treatment bringing together proponents and their critiques is Weijers and Duff 2002. Hudson 1998 offers a very useful analysis of how restorative justice may be applied in cases involving sexual and racial crimes. Mills 2003 argues persuasively for restorative justice in cases of intimate abuse. An excellent general critique of restorative justice is Ashworth 1993.

Hybrid Theories

There have been several important attempts to offer a hybrid theory of punishment, although these proponents are much fewer in number than proponents of the previous theories of punishment above. The most classic defense bringing together retributivist and consequentialist considerations under a new framework is offered in Rawls 1955. A related but more developed defense is offered by Hart 1968. Goldman 1982 offers an important rights-based hybrid theory of punishment. Robinson 1987 defends perhaps the most persuasive argument in favor of a hybrid theory of punishment.

Unified Theories

There is an important, but neglected, tradition in penal theory we might understand as the unified theory of punishment. This tradition is strongly pluralistic in defending theories of punishment that argue that punishment should combine retributivist, deterrent, rehabilitative, and perhaps further elements within a coherent, unified theory of punishment. The first defense of the unified theory of punishment is Hegel 1991 and a full explanation of this theory of punishment can be found in Brooks 2012a. Early defenders included British Idealist philosophers, such as Bosanquet 1923 and Green 1986. Brooks 2003 offers a further explanation of Green’s unified theory of punishment. The most comprehensive defense of the unified theory of punishment is Brooks 2012b. While this tradition has been neglected, this framework is an important alternative to existing traditions and may have value to those with interests in Hegel and Hegelian philosophy.

  • Bosanquet, B. The Philosophical Theory of the State. 4th ed. London: Macmillan, 1923.

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    A British Idealist defender of the unified theory of punishment offering an accessible account of how punishment may bring together retributivist, preventative, and rehabilitative elements in a unified account.

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  • Brooks, T. “T. H. Green’s Theory of Punishment.” History of Political Thought 24 (2003): 685–701.

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    Offers an explanation and defense of Green’s unified theory of punishment. A scholarly analysis aimed at more advanced readers.

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  • Brooks, T. Hegel’s Political Philosophy: A Systematic Reading of the Philosophy of Right. 2nd ed. Edinburgh: Edinburgh University Press, 2012a.

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    Offers an explanation and defense of Hegel’s unified theory of punishment. Will be of interest to those with some familiarity with Hegel’s philosophy more generally.

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  • Brooks, T. Punishment. London: Routledge, 2012b.

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    The most comprehensive defense of the unified theory of punishment. It is highly accessible and will be of interest to those coming to the subject for the first time, as well as for more advanced readers. It offers a critique of all other theories of punishment and also addresses the problems associated with relating theory to practice.

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  • Green, T. H. Lectures on the Principles of Political Obligation and Other Writings. Edited by P. Harris and J. Morrow. Cambridge, UK: Cambridge University Press, 1986.

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    A British Idealist defender of the unified theory of punishment that had great influence among British Hegelians in the late 19th and early 20th centuries.

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  • Hegel, G. W. F. Elements of the Philosophy of Right. Edited by A. W. Wood and H. B. Nisbet. Cambridge, UK: Cambridge University Press, 1991.

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    Offers the first defense of the unified theory of punishment. A very difficult text aimed at more advanced readers.

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Capital Punishment

Capital punishment is the topic that has received the most attention from philosophers working on punishment. The classic defense of capital punishment is Mill 1986. There are three articles interrelated that ran in a special issue of the journal Philosophy and Public Affairs. Reiman 1985 argued that even if murderers deserved capital punishment we should not impose it because it ran counter to civilized society. Nathanson 1985 argued that capital punishment should be opposed on the grounds that it arbitrarily selected those who may be deserving, such as through racial discrimination. Van den Haag 1985 concludes the trio arguing contra Reiman 1985 and Nathanson 1985 that their arguments do not succeed and that we should defend capital punishment as a just punishment for criminals. Alexander 1983 offers an important analysis of the problem of executing the innocent by mistake for defenders of capital punishment. Brooks 2004 and Brooks 2011 offer a new argument why retributivists should oppose capital punishment.

  • Alexander, Larry. “Retributivism and the Inadvertent Punishment of the Innocent.” Law and Philosophy 2 (1983): 233–246.

    DOI: 10.1007/BF00144449Save Citation »Export Citation »E-mail Citation »

    Offers an important critical analysis of the problem of executing the innocent by mistake for defenders of capital punishment.

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  • Brooks, T. “Retributivist Arguments against Capital Punishment.” Journal of Social Philosophy 35 (2004): 188–197.

    DOI: 10.1111/j.1467-9833.2004.00224.xSave Citation »Export Citation »E-mail Citation »

    Rejects attempts by others to offer an argument against capital punishment that would be convincing to retributivists. Suggests a new argument that can overcome the problems faced by earlier attempts.

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  • Brooks, T. “Retribution and Capital Punishment.” In Retributivism: Essays on Theory and Policy. Edited by M. D. White. Oxford: Oxford University Press, 2011.

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    Offers new grounds for why retributivists should oppose capital punishment in the most comprehensive analysis of the subject.

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  • Mill, J. S. “Speech in Favour of Capital Punishment.” In Applied Ethics. Edited by P. Singer, 97–104. Oxford: Oxford University Press, 1986.

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    The most classic defense of capital punishment. Originally a speech presented by J. S. Mill in the House of Commons when he served for a brief time as a member of Parliament.

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  • Nathanson, S. “Does It Matter if the Death Penalty is Arbitrarily Administered?” Philosophy and Public Affairs 14 (1985): 149–164.

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    The second part of a three-article symposium on capital punishment. Argues that capital punishment is wrong even where all executed deserve death because those selected among the deserving are chosen arbitrarily.

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  • Reiman, J. “Justice, Civilization, and the Death Penalty: Answering van den Haag.” Philosophy and Public Affairs 14 (1985): 115–148.

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    The first part of a three-article symposium on capital punishment. Argues that capital punishment should be opposed even if deserved for murderers because it runs counter to a civilized society.

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  • Van den Haag, E. “Refuting Reiman and Nathanson.” Philosophy and Public Affairs 14 (1985): 165–176.

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    The last part of a three-article symposium on capital punishment. Considers objections to capital punishment by Nathanson 1985 and Reiman 1985 and rejects them. Defends the justice of capital punishment.

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LAST MODIFIED: 11/26/2012

DOI: 10.1093/OBO/9780195396577-0094

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