Introduction to Political Theory

(Marvins-Underground-K-12) #1
Two further points should be made (these are not further steps in the argument,
but important elaborations of what has been set out above):

  1. The punishment need not be strictly analogous to the crime: its nature is
    determined by the ‘generalised’ will of the criminal. The lex talionisrequires not
    strict equivalence but ‘proportionality’: we do not fine mass murderers and
    execute speeding drivers! Furthermore, we are not barbaric: because a murderer
    tortured his victims to death it does not follow that we should do likewise – as
    we will see later this opens up the possibility that a retributivist might be opposed
    to the death penalty.

  2. Punishment must have certain characteristics: it must be the result of a due
    process; appropriate; carried out by an authorised authority; and coolly


As the label suggests a consequentialist judges the rightness of an action by its con-
sequences. So applied to punishment, put simply, we punish in order to bring about
good consequences, or avoid (or reduce) bad ones. The term ‘consequentialism’ covers
a broad family of moral and political theories, the best known of which is
utilitarianism, which is a maximising form of consequentialism. Consequentialism
is discussed in more detail in Chapter 8 (Liberalism), but in summary its main features

  • In its utilitarian version consequentialism requires that legal and political
    institutions should function to maximise the overall level of welfare – or utility

    • of a society. Utilitarians differ over the definition of utility, but all must agree

  • Instances of utility are commensurable – that is, you can compare different things
    by their capacity to increase or reduce utility. For example, you can compare the
    pain inflicted on a criminal when they are punished with the pain a victim suffers
    when the criminal goes unpunished. You cannot maximise something unless
    you can compare instances of utility. However, not all consequentialists are
    maximisers – we might say, for example, that punishment should (a) deter; (b)
    satisfy the victim; (c) reform the criminal, but not believe that you can measure
    all these things, or put them all onto one scale.
    There are a set of standard criticisms of utilitarianism: (a) what makes people
    happy, gives them pleasure, or what they prefer is completely open: if torturing
    another person gives you pleasure, then it must be counted into the ‘maximand’
    (that which is to be maximised); (b) we cannot respect the law if breaking it will
    increase utility; (c) utilitarians cannot respect individual rights – John Stuart Mill’s
    attempt to establish a ‘sphere of non-interference’ (rights) on the basis of ‘human
    interests in the widest sense’ (utility) is incoherent; (d) one person could be made
    to suffer excruciating pain in order to give a million people each a minuscule
    amount of pleasure. A less extravagant criticism is that utilitarians cannot be
    concerned about the distribution of welfare, but merely its overall level; (e) you are
    as much responsible for what you allow to happen as what you do in a more direct

146 Part 1 Classical ideas

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