What is punishment?
In Chapter 1 we argued that the state is a coercive entity. In Max Weber’s words,
the state is that entity that successfully commands a monopoly on the legitimate
use of violence in a given territory. The state is most obviously coercive when it
punishes its citizens, and although most people do not possess a criminal record,
the threat of punishment conditions the behaviour of everybody. However, the
state also claims the rightto punish, which means that punishment cannot simply
be the application of arbitrary force or violence, but must be reasoned. It is the
reasons for punishment that concern us in this chapter: why punish? What justifies
punishment? The case study focused on one specific type of punishment – what
some people call the ‘ultimate punishment’: the death penalty (or capital punish-
ment). Capital punishment illustrates in a compelling way competing justifications
for punishment and connects back to the fundamental question about the nature
of the state: one argument advanced against the death penalty is that it is an act of
pure revenge, or violence, and incompatible with the reasoned use of force
supposedly characteristic of the state. Defenders of the practice have to demonstrate
that this is not the case.
Unlike some other concepts employed by political theorists, punishment is one
widely used in everyday discussion. The person in the street would probably not
offer an abstract definition but rather equate punishment with imprisonment, or
being fined, or required to do community service. And although most people would
no doubt ‘accept’ that sometimes the innocent get punished it is considered
outrageous deliberatelyto punish an innocent person. The difficulty is that the most
popular justification for punishment is that it deters crime. Yet, as we will see later,
if we punish to deter then there are circumstances in which punishing an innocent
person might be justified (of course, we – or, at least, most of us – have to believe
the person is guilty, but belief is distinct from fact). Therefore, we cannot start by
defining punishment as the infliction of suffering by the state on a guiltyperson.
More broadly, how we define punishment is bound up with why we punish – we
cannot operate with a morally neutral definition of punishment and then simply
move on to its justification. That said, we will provide a very rough, working
definition (which will then have to be refined depending on how we justify it):
punishment is the infliction of ‘hard treatment’ by an authorised authority (that is,
the state) where the suffering isin some way connected to the actual or potential
violation of a law(the phrase ‘in some way’ leaves open the possibility that an
innocent person could justifiably be punished).
With that definition in mind we can now consider what justifies the infliction of
hard treatment, and, in the process, clarify the phrase ‘in some way’. Traditionally,
two theories dominate the debate over the justification of punishment: retributivism
and consequentialism. Both have significant weaknesses and so in response a third
kind of theory has developed which seeks to avoid the weaknesses and incorporate
the strengths of both, although this third type is basically consequentialist. We will
start with retributivism, move on to consequentialism, and finally discuss
‘compromise theories’.Chapter 7 Punishment 143