Introduction to Political Theory

(Marvins-Underground-K-12) #1

Compromise theories (indirect utilitarianism)


What we call ‘compromise theories’ are essentially consequentialist theories that
seek to avoid the problem of perceived injustice – the punishment of the innocent
and inequity. Some theorists argue that it is, by definition, impossible to punish an
innocent person – if you look up ‘punishment’ in the Chambers Dictionarythen
you will find this definition: ‘to cause (someone) to suffer for an offence’, with the
implication that the preposition ‘for’ states a causal relationship. This argument is
very weak. First, dictionaries – indeed, everyday usage of words – do not settle
philosophical arguments, and, second, we could just invent another word to denote
something like punishment.
A better starting point for dealing with the problems thrown up by consequen-
tialism is to distinguish acts and rules (and so act-utilitarianism from rule-
utilitarianism). Act-utilitarianism requires: (a) that utility be maximised; (b) that
each person should on each occasion act to maximise utility. If we then apply this
to punishment, state officials (police, judiciary) should always have in mind the
maximisation of utility. Rule-utilitarianism endorses (a) – we have a duty to
maximise utility – but we should not always act as if we are utilitarians. So long
as a person’s (police officer’s, judge’s) actions contribute to the maximisation of
utility it is not necessary to think(be motivated) like a utilitarian. State officials
could think like retributivists. At the core of rule-utilitarianism is the idea that by
respecting rules – for example, the rule that only the guilty should be punished –
we maximise utility. It should be made clear that this is an empirical argument: we
have to show that it is in fact the case that respecting rules does indeed maximise
utility. Some critics of utilitarianism are not convinced. So in response a further
refinement of the theory has been made – we do not just follow rules, but we separate
out roles: this theory has been termed ‘institutional utilitarianism’ and has been
advanced by H.L.A. Hart and by John Rawls.^2
In his essay ‘Prolegomena to the Principles of Punishment’, Hart argued that
three questions are central to the philosophical debate over punishment:


  1. What is the ‘general justifying aim’ of punishment?

  2. Who may properly be punished?

  3. How should the appropriate amount of punishment be determined?
    (Hart, 1959–60: 3)


What is at issue is whether 1–3 can all be adequately answered by reference to
a single principle such as the moral requirement to maximise utility, or whether
they require separate treatment. Compromise theories maintain that different
principles must be applied to address each of these questions. However, as the title
of his essay suggests, Hart is not offering a fully fledged theory of punishment (a
‘prolegomena’ is a preface or programmatic statement). Other theorists have offered
more substantial contributions to the development of a compromise theory.
In his essay ‘Two Concepts of Rules’, Rawls seeks to reconcile two moral
intuitions: (a) only the guilty should be punished (a retributivist intuition), and (b)
punishment should serve a purpose (a consequentialist intuition) (Rawls, 1999: 22).
Rawls also makes the distinction between rules and actions mentioned above, and
from that distinction emerge two corresponding roles: the ‘legislator’ (who

Chapter 7 Punishment 149
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