Two further points should be made (these are not further steps in the argument,
but important elaborations of what has been set out above):- 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. - Punishment must have certain characteristics: it must be the result of a due
process; appropriate; carried out by an authorised authority; and coolly
implemented.
Consequentialism
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
are:- 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
that:
- 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