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The Ethics of Punishment

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This scene makes one wonder whether or not this action is right, which is the point of Judge Dredd’s character. There have been many theories of ethics proposed that attempt to answer what makes a punishment right and justified. Three notable philosophers, Immanuel Kant, John Stuart Mill, and H.L.A. Hart, have all proposed their own theories. For our society to be one that is moral, we must analyze each of these philosophers’ theories to see which we should model our laws after.

The aforementioned scene seems to most clearly mirror “retributivist” ethics. Retributivism is hard to define as pointed out by Chin Liew Ten when he states in his work Crime, Guilt, and Punishment, “There is no complete agreement about what sorts of theories are retributive except that all such theories try to establish an essential link between punishment and moral wrongdoing” (38). The central idea of all retributive theories is that the criminal deserves some degree of punishment due to the criminal’s immoral actions. This leaves a lot of room for retributive theories, however, so much so that any further analysis of retributive theory overall is almost impossible. To simplify this analysis, I will simply analyse Immanuel Kant’s retributive theory.

The foundation of Kant’s retributive theory is that which he dubs the “principle of equality.” This simple principle states that when a criminal has committed a wrongful act, he has upset the balance of the scale of justice. He has inflicted one wrong on another and therefore has made himself deserving of wrong as punishment. Another core principle of Kant’s retributive theory is the “principle of retaliation.” This principle states that any wrongful act that a criminal has committed should be viewed as committed to himself. The easiest example to understand this principle with is that of the stimulus material: the criminal attempted to kill an innocent and therefore deserves to be killed according to this principle.

This theory of legal ethics is elegant and simple which has caused it to be one of the most popular in contemporary times, especially in America. The theory is crafted in such a way that innocents cannot possibly be morally punished with the theory’s principle of equality. It is also crafted in such a way that appeals to the average person’s most basic ideals of justice such as the age-old thought of an eye for an eye. However, many criticisms of this theory have been brought forth, these criticisms challenging the idea that punishment can be administered on the grounds of justice without taking into account the balance of happiness and unhappiness.

One notable criticism of Kant’s retributive theory comes from Gertrude Ezorsky. In this critique, Ezorsky calls upon one to imagine a world where punishment has no further effects worth achieving, meaning that victims get no solace from punishment, punishment entails no rehabilitation, and punishment does not deter crime. In this world, the retributivist would be condemned to punish wrongdoers despite the fact that nothing will ever come of it and despite the fact that nobody will benefit from this punishment. While this argument would not deter a retributivist, as Kant says, “if justice and righteousness perish, human life would no longer have any value in the world” (104), it still shows that Kant’s retributivism would be problematic to the average person. A more damning critique of retributive theory is the critique of the lex talionis, the aforementioned thought of an eye for an eye.

This idea is extremely problematic in almost every case where punishment must be given. For example, how should we punish a kidnapper? Applying the lex talionis, the proper punishment for a kidnapper is to kidnap them or one that they love, which many would identify as morally wrong. In many cases, the lex talionis is impossible to apply such as in the case of counterfeiting money. There are many cases where applying the lex talionis would be despicable as it would cause the government to perform heinous action. For example, using the lex talionis to punish a rapist would be utterly wrong. As a result, appeals to this idea have been replaced with the principle of proportionality, which differs in each retributive theory, making it hard to critique overall. However, one universal critique is that if a less heinous punishment can produce the same or better outcome for all parties involved, the retributivist will still, however, be forced to give out punishment that can be viewed as heinous due to the principle of retaliation.

As one can see, though, many of these critiques cannot influence a retributivist as a retributivist can simply shrug off each critique as retributive theory, at its core, states that the offender fundamentally deserves punishment regardless of all of these hypotheticals. This is very similar to how the character Judge Dredd acts as he cares only for the law and punishes all who break it. However, there is a theory of ethics which is much more open-ended yet equally as criticized as retributive theories. This theory of ethics prioritizes the utility of punishment rather than prioritizing the idea of justice. This is the theory of utilitarianism.

Utilitarianism is the theory of ethics, including but not limited to legal punishment, where the morality of an action is determined by the balance good and evil that is produced by that action. Much like retributive theory, there are many different brands of utilitarian theory. For example, Jeremy Bentham associated good with pleasure and evil with pain, and claimed that greatest amount of pleasure should belong to as many as possible. John Stuart Mill held nearly identical beliefs except that he associated good with happiness and evil with unhappiness. For the purposes of this paper, I will be analyzing John Stuart Mill’s version of utilitarianism.

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Despite the fact that we are using a specific philosopher’s version of utilitarianism, there is still a lot of room for interpretation of how punishment should be given out given the terms of this theory’s morality. Traditionally, utilitarians focus on three separate ways punishment is used to maximize happiness through stopping crime. The first is detering potential defenders. In theory, knowing that there will be punishment for an action will deter someone from committing a crime. The second way is incapacitating offenders, meaning keeping them in a state where they can commit no further crimes. The third way is to rehabilitate offenders, which in theory makes them less likely to commit crimes once their punishment has ended. A fourth way that a punishment can affect happiness which is invoked less often is how society views the punishment given out to a specific offender, including whether or not punishment is given at all.

The fourth is often excluded because it opens utilitarianism to one of its most damning criticisms. H.L. McCloskey in his work A Non-Utilitarian Approach to Punishment states the following:

Suppose a utilitarian were visiting an area in which there was racial strife, and that, during his visit, a Negro rapes a white woman, and that race riots occur as a result of the crime, white mobs, with the connivance of the police, bashing and killing Negroes, etc. Suppose too that our utilitarian is in the area of the crime when it is committed such that his testimony would bring about the conviction of a particular Negro. If he knows that a quick arrest will stop the riots and lynchings, surely, as a utilitarian, he must conclude that he has a duty to bear false witness in order to bring about the punishment of an innocent person.

According to McCloskey, a utilitarian, according to their own moral code, must disregard notions of justice and must only care about happiness of the collective. This is a very problematic idea as it leads to situations such as the one above, where innocence is completely disregarded. A utilitarian, however, might counter this argument by saying that punishing an innocent causes unhappiness with certainty as the utilitarian knows the punishment will cause much grief to the innocent and his family while happiness is not guaranteed by the action as the projected results are based on a hunch. This argument is used by T.L.S. Sprigge in his work dubbed A Utilitarian Reply to Dr. McCloskey. This counter, however, is equally as problematic as it argues that the man should not be punished because it will not balance happiness and unhappiness, which is not why the man shouldn’t be punished. The man shouldn’t be punished because punishing him is unjust. Utilitarianism does not account for ideals such as justice and, therefore, is not an adequate theory.

A much more appealing theory than either utilitarianism or retributivism is Hart’s theory of ethics, which seeks to combine both utilitarianism and retributivism. Hart’s fundamental claim is that there are essentially two questions that must be answered in the ethics of punishment. The first question is, “What justifies the general practice of punishment?” The second, separate question is, “To whom may punishment be applied?” To the first question, Hart suggests that we apply utilitarian thought and to the second, retributive thought. Essentially, Hart suggests that the practice of punishment must promote the reduction of crime, a utilitarian ideal, but also suggests that punishment must only be allowed punish an offender for an offense, a retributive idea. These two principles combined create a theory where tangible benefits in society are pursued while the possibility of punishing those who do not deserve punishment is greatly lessened.

However, Hart’s theory is not without its flaws. Hart admits that, in the most extreme cases, that the latter principle may be overridden by utilitarian concerns only in the most extreme cases with the most grave seriousness. This process, however, cannot work in the reverse as according to Hart, some social good must be produced by punishment or else the punishment becomes unjustifiable. This leads to the situation where a heinous criminal cannot be punished for his crimes if it does not produce good social consequences. Many ethicists find this consequence unacceptable. Ten takes this further in his aforementioned work when he states, ““it would be unfair to punish an offender for a lesser offense and yet not punish another offender for a more serious offense” (80).

This criticism that Ten puts forward appeals to our intuitions of fairness. However, I and several others have found this criticism to be uncompelling upon further analysis. We must ask ourselves why it is unfair for a lesser offender to be punished while a more serious offender goes unpunished. Upon further analysis, it is clear that the minor offender has no grounds for complaint. Regardless of the punishment of the serious offender, the minor offender still committed the minor offense. The justification of punishment arguably should not be contingent upon the punishment of others as the minor offender is an offender nonetheless. Society has not failed him by not punishing the serious offender as the minor offender is owed punishment regardless of who else goes unpunished.

For the aforementioned reasons, it is clear that Hart’s theory of ethics bests retributive ethics and utilitarian ethics. While the latter two have large flaws, whether it be stating that punishment’s goal is to serve vengeance or stating that justice has no place in punishment, Hart effectively combines these two theories to make one where both justice and happiness play a role in punishment. While it is far from flawless, it is clear that it is superior to both of these other forms of legal ethics.

Upon further analysis, Dredd’s action is still unclear in terms of morality. While being nearly completely justified in retributivist theory, Dredd’s action is still morally grey under both Mill’s and Hart’s theory which is arguably the point of the scene. His action shows that despite coming up with a “perfect theory,” there will always be ethical dilemmas in a system of law.

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The Ethics of Punishment. (2022, Jun 16). Edubirdie. Retrieved December 4, 2022, from https://edubirdie.com/examples/the-ethics-of-punishment/
“The Ethics of Punishment.” Edubirdie, 16 Jun. 2022, edubirdie.com/examples/the-ethics-of-punishment/
The Ethics of Punishment. [online]. Available at: <https://edubirdie.com/examples/the-ethics-of-punishment/> [Accessed 4 Dec. 2022].
The Ethics of Punishment [Internet]. Edubirdie. 2022 Jun 16 [cited 2022 Dec 4]. Available from: https://edubirdie.com/examples/the-ethics-of-punishment/
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