In this paper I want to examine the notion of desert, which seems to have been neglected by contemporary philosophers. Apartfrom its interest in its own right, it is important to be clear about the meaning of the word if there is to be any understanding of the idea of punishment. And that we are confused over the whole issue of punishment is obvious both from the remarks of professional philosophers and from the comments of the ‘man in the street’. (...) Because of this confusion, the discussion of any actual punishment seems to take place between two parties who never get to grips with the arguments of the other, as in the whole debate over the death penalty. To one set of people, it is obvious that the retention of hanging depends to a large extent on the question of its effectiveness in deterring murderers; to another it is equally obvious that the murderer ‘deserves’ to hang, and that there is no more to be said about the matter. Capital punishment is not a good starting-point for a discussion of punishment in general, for death is clearly unique among penalties; in addition, the topic gives rise inevitably to much sentimentality and resulting muddle-headedness. (shrink)

Professor Flew's vigorous and interesting paper, “The Justification of Punishment,” in PHILOSOPHY for October 1954 discusses my article on Punishment in Mind for April 1939. It merits some rejoinder. Flew's paper ranges far beyond the particular issue of punishment, and much of what is most interesting in it has this wider relevance. I, too, therefore shall use punishment as a peg on which to hang some discussion of the wider problems of ethics.

I want to discuss philosophically, to glance at the logic of, the parts of this expression “the justification of punishment” and then to draw from this discussion one or two morals for discussions of the justification of punishment. This paper is based on one originally given to the Scots Philosophy Club at its Aberdeen meeting in 1953, as the third part of a symposium on The Justification of Punishment.

I SHALL develop, in this article, certain distinctions suggested by recent contributions to the philosophical discussion of punishment, which help to clarify the issues involved. Having separated out what I consider the four central philosophical questions, I shall suggest an approach to them, which, while mainly utilitarian, takes due account, I believe, of the retributivist case where it is strongest, and meets the main retributivist objections.

My aim in this article is threefold: First, I wish to challenge the view put forward by A. Flew and H. L. A. Hart which has won widespread recognition, namely, that the concept of punishment entails a legal or quasi-legal system of punishment. In my view all that is necessary for a case of punishment to occur is that a person inflicts deliberately and not primarily for the sake of any beneficial consequences which may flow from his action, anything likely (...) to cause discomfort to a victim who is capable of experiencing it, provided that the person inflicting the discomfort would claim, if asked to give a reason for his action, that he is inflicting it because of something for which he holds the victim accountable. If I am right it follows that punishment is not necessarily retributive, and that utilitarian ‘punishment’ like reformative and compensatory ‘punishment’ is not true punishment, since the discomfort inflicted in these cases is merely ancillary to another end. Secondly, I hope to show that Hart does not succeed in discrediting the retributive theory, and that his treatment of punishment, though functional in aim, perpetuates the confusion between the meaning of punishment and its justification. Thirdly, I shall contend that retribution is not a proper aim of a legal system, whatever place it may actually have or ought to have in our moral code. Looking to the future, I shall venture to predict that the legal institution of punishment will sooner or later give way to a system designed to reduce crime and to rehabilitate offenders. Such a system will be adjusted to the needs of the community and of individual offenders, and will not involve the infliction of discomfort as an end. Hence, it would be wrong to call it a system of punishment. (shrink)