Reading Notes Assignment
Reading notes will be of two kinds:
(a) Descriptive notes: this where you simply describe in your own words what you think is going on in the text under consideration; these notes, in principle, should be of the sort that could be of use to third parties who never read the articles in question when it come to learning what they are about and their philosophical content.
(b) Normative notes: On occasion as you read along you will be struck a certain way, say a claim will strike you as false or implausible. This is when you must seize the moment and formulate your reasons for this belief. In other words, you will be constructing and evaluating your own arguments.
Notes of the following readings only:
1. 1-311DefinitioinLegalPunishment.pdf
2. Jeremy Bentham_ An Introduction to the Principles of Morals and Legislation.pdf
3. Rawls.pdf
Use both types of note-types for each reading.
Justifying Legal
Punishment
Igor Primoratz
om
Humanity
Books
an imprint of Prometheus Books
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Published by Humanity Books, an imprint of Prometheus Books
Justifying Legal Punishment. Copyright© 1989 by Igor Primoratz. All rights reserved.
No part of this publication may be reproduced, stored in a retrieval system, or trans-
mitted in any form or by any means, digitaL electronic, mechanicaL photocopying. re-
cording, or otherwise or conveyed via the Internet or a Web site without prior written
permission of the publisher. except in the case of
ief quotations embodied in critical
articles and reviews.
Primoratz, Igor
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Humanity Books
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Li
ary of Congress Cataloging-in-Publication Data
Justifying legal punishment I Igor Primoratz.
p. em. (Studies in applied philosophy)
First published 1989 by Humanities Press International, Inc., Atlantic Highlands. NJ.
Includes bibliographical references and index.
ISBN 13: XXXXXXXXXX
ISBN 10: XXXXXXXXXXpbk. : alk. paper)
1. Punishment_:_Philosophy. 2. Punishment-Moral and ethical.
HV8675.P75 1989
364.6-dcl9
Printed in the United States of America on acid-free paper
88-9198
CIP
For Edna
l. Introduction
1. What Is Punishment?
The word "punishment" is used in various contexts. We say that a
parent has punished a child, or that a teacher has punished a pupil; that
a referee has punished a football player; that a party committee has
punished a member pf the party; that a judge has punished an offender;
that God has punished a sinner. A systematic discussion of punishment
in general would have to start with an investigation of basic characteris-
tics of the use of the word "punishment" in the contexts of talking about
family or school education, sporting games, voluntary associations,
criminal law, or religious beliefs. Such an investigation should enable us
to establish whether the use of the word in all these different contexts
exhibits a common core, a set of characteristics which is the necessary
and sufficient condition for applying the word "punishment," which
defines "punishment" in general - or perhaps it is not at all proper to
talk about "punishment in general," because God's punishment, pun-
ishment as a means of education, as an element of a game, as a
disciplinary measure in a voluntary association and legal punishment
are connected only by family resemblances. 1
But I am not going to discuss this question. For this book does not deal
with punishment in general (if there is such a thing), but with a specific
kind of punishment only -legal punishment. When taken in this specific
sense, "punishment" can be defined as an evil deliberately inflicted qua
evil on an offender by a human agency which is authorized by the legal order
whose laws the offender has violated. Let me say a few words about
each of these components of the definition.
(1) Punishment is sometimes defined as a pain or suffering inflicted on
an offender. Such a definition would be too na
ow. When we mention
suffering in this context, and when we mention pain even more so, we
tend to think of physical suffering, physical pain. In earlier centuries
punishments very frequently consisted of infliction of physical pain,
physical suffering; in more recent times, however, there are hardly any
punishments. which would inflict this kind of pain or suffering on the
convict, at least in civilized countries. But even if we were to emphasize
2 INTRODUCTION
that the words "pain" or "suffering" are taken in a wider sense, so as to
include mental pain and suffering, the definition would still be too
na
ow. For in our own time, the criminal-law systems of civilized
countries as a rule provide for punishments which do not inflict pain or
suffering of any kind on the convict - neither physical nor mental -
ut deprive him of a good he would want to keep: a fine deprives him of
a certain sum of money, a prison term deprives him of liberty for a
certain period of time, capital punishment deprives him of life. The
conditions in which a convict is going to spend time in prison by no
means have to be such as to cause him pain or suffering; even the most
severe of all penalties, the penalty of death, is today generally ca
ied
out in such a way as to make it as painless as possible for the convict.
Therefore it is better to define punishment as an evil inflicted on an
offender. "Evil" is taken here in a formal sense, meaning "anything that
people do not want to be inflicted on them."
It is a fact, though, that there are people who deliberately commit an
offense in order to end up in jail and spend some time there, and even
those who murder in order to be executed (so that their misdeed is,
asically, an indirect suicide of sorts). If we define punishment as an
evil, shall we have to say that such offenders in fact are not punished at all?
Alternatively, if we are not ready to em
ace this implication, do we have
to give up the definition of punishment in terms of evil? We need not
accept either alternative. For when we define punishment as an evil
inflicted on an offender, and when, in the role of a lawgiver, we compile
a code of criminal law and determine the punishments which will be
inflicted for various offenses, we do not think of each and every individ-
ual case of punishing an individual offender; we make use of some
experiential conclusions about what people as a rule do not want to be
inflicted on them. People as a rule do not want their money to be taken
away from them, or to be put in jail and made to stay there for a period
of time, or to be electrocuted, or hanged; therefore, to inflict any of these
things on someone means, as a rule, to inflict an evil on them. For this
eason we have fines, prison terms, and executions as punishments.
These are punishments in spite of the fact that in certain exceptional cases
they are not evil for the convict - precisely because such cases are
exceptional. If some day people change so much as to come to like, as a
ule, to have their money taken away from them, to live in prisons, and
to be executed rather than to wait for their natural deaths; or if they
come to be quite indifferent to such possibilities, then to sentence a
person to any of these will, in general, no longer mean to punish. In
What Is Punishment? 3
s:tch a case we would have to introduce some new punishments, quite
d.Ifferent from those we know - punishments which in those changed
Circumstances would amount to things people as a rule do not want to
e inflicted on them, that is, which would amount to instances of evil.
(2) An offender is a person who has committed an offense. By "offense"
we sometimes mean a violation of a moral norm; but the primary
meaning of the word, the meaning we most frequently have in mind, is
"a violation of the criminal law." This is the meaning the word has when
used to define legal punishment. 2 I should emphasize that, when I
define punishment as an evil inflicted on an offender, by "offender" I
mean a person who has offended against any positive criminal law, no
matter whether that law is just or unjust, whether it is an expression of a
condition of universal freedom or of a tyrant's a
itrary will, whether it
is morally legitimate or not.
But does "punishment" as a matter of fact always mean "an evil
inflicted on an offender"? Does it not happen that a person who is not an
offender, who. has ~ot offended against the law, gets punished? Judges
are n~ mor~ mfalhble than the rest of us; thus it can happen, and
sometimes It does happen, that a judge sentences a defendant who
actually has not committed the offense he is charged with. Now, when a
person who has been sentenced by mistake spends time in jail or gets
executed, is this not punishment in the same sense and to the same
degree as if he were really guilty as charged? No doubt we would be
willing to apply the word "punishment" in such cases as well; but it
does not follow that we have to give up the definition of "punishment"
as an evH inflicted on an offender. The only thing we have to do is to
efine it: punishment is the infliction of an evil on a person believed to be
~n offe~der by those who decide on it. This belief on the part of the
JUdges IS (one hopes) true; still, sometimes it can be false. But even if it
were more often false than true, that would not mean that we could no
longer speak of punishments; for it is the belief mentioned, and not the
fact .that makes the belief true, which is a logical presupposition of
pumshment.
(3) The definition of punishment as an evil deliberately